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NORTH CAROLINA
REGISTER
Volume 15, Issue 3
Pages 221 - 348
August 1, 2000
This issue contains documents officially filed
through July 11, 2000.
Office of Administrative Hearings
Rules Division
424 North Blount Street (27601)
6714 Mail Service Center
Raleigh, NC 27699-6714
(919) 733-2678
FAX (919) 733-3462
Julian Mann III, Director
Camille Winston, Deputy Director
Molly Masich, Director of APA Services
Ruby Creech, Publications Coordinator
Linda Dupree, Editorial Assistant
Dana Sholes, Editorial Assistant
IN THIS ISSUE
I. IN ADDITION
ENR –Environmental Management.........................................221
II. RULE-MAKING PROCEEDINGS
Environment and Natural Resources
Coastal Resources Commission ..........................................222 - 223
Health Services, Commission for........................................223
Justice
Alarm Systems Licesning Board.........................................222
Private Protective Services.................................................222
III. PROPOSED RULES
Environment and Natural Resources
Environmental Management...............................................241 - 266
Health and Human Services
Child Care Commission.....................................................224 - 235
Medical Assistance............................................................235 - 237
Insurance
Actuarial Services Division................................................238 - 239
Property and Casualty Division...........................................237 - 238
Justice
Alarm Systems Licensing Board.........................................239 - 241
IV. TEMPORARY RULES
Health and Human Services
Social Services..................................................................267
Licensing Boards
Electrical Contractors, Board of Examiners..........................267 - 269
V. APPROVED RULES...........................................................270 - 333
Commerce
Departmental Rules
Office of Information Technology Services
Environment and Natural Resources
Environmental Management
Health Services
Health and Human Services
Health Services
Social Services
Insurance
Financial Evaluation Division
Life and Health Division
Property and Casualty Division
Special Services Division
Justice
Private Protective Services
Licensing Boards
Architecture
Geologist s
Nursing, Board of
Nursing Home Administrators
Plumbing, Heating and Fire Sprinkler Contractors
Real Estate Commission
Refrigeration Examiners
Substance Abuse Professionals, Certification Board for
Public Education
Elementary and Secondary Education
Revenue
Ad Valorem Tax Division
Corporate Income & Franchise Tax Division
Departmental Rules
Individual Income: Inheritance & Gift Tax Division
License and Excise Tax Division
Sales and Use Tax
Motor Fuels Tax Division
Transportation
Highways, Division of
Motor Vehicle, Division of
VI. RULES REVIEW COMMISSION.......................................334 - 336
VII. CONTESTED CASE DECISIONS
Index to ALJ Decisions..........................................................337 - 339
Text of Selected Decisions
99 ABC 1341....................................................................340 - 341
99 EHR 1438....................................................................342
99 EHR 1538....................................................................343 - 348
VIII. CUMULATIVE INDEX ......................................................1 - 62
North Carolina Register is published semi-monthly for $195 per year by the Office of Administrative Hearings, 424 North Blount Street, Raleigh, NC
27601. (ISSN 15200604) to mail at Periodicals Rates is paid at Raleigh, NC. POSTMASTER: Send Address changes to the North Carolina
Register, PO Drawer 27447, Raleigh, NC 27611-7447.
NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM
The North Carolina Administrative Code (NCAC) has four major subdivisions of rules. Two of these, titles and
chapters, are mandatory. The major subdivision of the NCAC is the title. Each major department in the North
Carolina executive branch of government has been assigned a title number. Titles are further broken down into
chapters which shall be numerical in order. The other two, subchapters and sections are optional subdivisions to
be used by agencies when appropriate.
TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE
TITLE DEPARTMENT LICENSING BOARDS CHAPTER
1
2
3
4
5
6
7
8
9
10
11
12
13
14A
15A
16
17
18
19A
20
*21
22
23
24
25
26
27
Administration
Agriculture
Auditor
Commerce
Correction
Council of State
Cultural Resources
Elections
Governor
Health and Human Services
Insurance
Justice
Labor
Crime Control & Public Safety
Environment and Natural Resources
Public Education
Revenue
Secretary of State
Transportation
Treasurer
Occupational Licensing Boards
Administrative Procedures (Repealed)
Community Colleges
Independent Agencies
State Personnel
Administrative Hearings
NC State Bar
Acupuncture
Architecture
Athletic Trainer Examiners
Auctioneers
Barber Examiners
Certified Public Accountant Examiners
Chiropractic Examiners
Employee Assistance Professionals
General Contractors
Cosmetic Art Examiners
Dental Examiners
Dietetics/Nutrition
Electrical Contractors
Electrolysis
Foresters
Geologists
Hearing Aid Dealers and Fitters
Landscape Architects
Landscape Contractors
Massage & Bodywork Therapy
Marital and Family Therapy
Medical Examiners
Midwifery Joint Committee
Mortuary Science
Nursing
Nursing Home Administrators
Occupational Therapists
Opticians
Optometry
Osteopathic Examination & Reg. (Repealed)
Pastoral Counselors, Fee-Based Practicing
Pharmacy
Physical Therapy Examiners
Plumbing, Heating & Fire Sprinkler Contractors
Podiatry Examiners
Professional Counselors
Psychology Board
Professional Engineers & Land Surveyors
Real Estate Appraisal Board
Real Estate Commission
Refrigeration Examiners
Sanitarian Examiners
Social Work Certification
Soil Scientists
Speech & Language Pathologists & Audiologists
Substance Abuse Professionals
Therapeutic Recreation Certification
Veterinary Medical Board
1
2
3
4
6
8
10
11
12
14
16
17
18
19
20
21
22
26
28
30
31
32
33
34
36
37
38
40
42
44
45
46
48
50
52
53
54
56
57
58
60
62
63
69
64
68
65
66
Note: Title 21 contains the chapters of the various occupational licensing boards.
NORTH CAROLINA REGISTER
Publication Schedule For January 2000 - December 2000
FILING DEADLINES
NOTICE OF
RULE-MAKING
PROCEEDIN
GS
NOTICE OF TEXT
TEMPORARY RULE
non-substantial economic impact substantial economic impact
volume
and issue
number issue date
last day for
filing
earliest register
issue for
publication of
text
earliest
date for
public
hearing
end of
required
comment
period
deadline to
submit to
RRC for
review at
next
meeting
first
legislative
day of the
next
regular
session
end of
required
comment
period
deadline to
submit to
RRC for
review at
next
meeting
first legislative
day of the
next regular
session
270th day from issue
date
14:13 01/04/00 12/09/99 03/15/00 01/19/00 02/03/00 02/21/00 05/09/00 03/06/00 03/20/00 05/09/00 09/30/00
14:14 01/14/00 12/21/99 03/15/00 01/31/00 02/14/00 02/21/00 05/09/00 03/14/00 03/20/00 05/09/00 10/10/00
14:15 02/01/00 01/10/00 04/03/00 02/16/00 03/02/00 03/20/00 05/09/00 04/03/00 04/20/00 01/26/01 10/28/00
14:16 02/15/00 01/25/00 04/17/00 03/01/00 03/16/00 03/20/00 05/09/00 04/17/00 04/20/00 01/26/01 11/11/00
14:17 03/01/00 02/09/00 05/01/00 03/16/00 03/31/00 04/20/00 01/26/01 05/01/00 05/22/00 01/26/01 11/26/00
14:18 03/15/00 02/23/00 05/15/00 03/30/00 04/14/00 04/20/00 01/26/01 05/15/00 05/22/00 01/26/01 12/10/00
14:19 04/03/00 03/13/00 06/15/00 04/18/00 05/03/00 05/22/00 01/26/01 06/02/00 06/20/00 01/26/01 12/29/00
14:20 04/17/00 03/27/00 07/03/00 05/02/00 05/17/00 05/22/00 01/26/01 06/16/00 06/20/00 01/26/01 01/12/01
14:21 05/01/00 04/07/00 07/03/00 05/16/00 05/31/00 06/20/00 01/26/01 06/30/00 07/20/00 01/26/01 01/26/01
14:22 05/15/00 04/24/00 07/17/00 05/30/00 06/14/00 06/20/00 01/26/01 07/14/00 07/20/00 01/26/01 02/09/01
14:23 06/01/00 05/10/00 08/01/00 06/16/00 07/03/00 07/20/00 01/26/01 07/31/00 08/21/00 01/26/01 02/26/01
14:24 06/15/00 05/24/00 08/15/00 06/30/00 07/17/00 07/20/00 01/26/01 08/14/00 08/21/00 01/26/01 03/12/01
15:01 07/03/00 06/12/00 09/01/00 07/18/00 08/02/00 08/21/00 01/26/01 09/01/00 09/20/00 01/26/01 03/30/01
15:02 07/17/00 06/23/00 09/15/00 08/01/00 08/16/00 08/21/00 01/26/01 09/15/00 09/20/00 01/26/01 04/13/01
15:03 08/01/00 07/11/00 10/02/00 08/16/00 08/31/00 09/20/00 01/26/01 10/02/00 10/20/00 01/26/01 04/28/01
15:04 08/15/00 07/25/00 10/16/00 08/30/00 09/14/00 09/20/00 01/26/01 10/16/00 10/20/00 01/26/01 05/12/01
15:05 09/01/00 08/11/00 11/01/00 09/18/00 10/02/00 10/20/00 01/26/01 10/31/00 11/20/00 01/26/01 05/29/01
15:06 09/15/00 08/24/00 11/15/00 10/02/00 10/16/00 10/20/00 01/26/01 11/14/00 11/20/00 01/26/01 06/12/01
15:07 10/02/00 09/11/00 12/01/00 10/17/00 11/01/00 11/20/00 01/26/01 12/01/00 12/20/00 05/2002 06/29/01
15:08 10/16/00 09/25/00 12/15/00 10/31/00 11/15/00 11/20/00 01/26/01 12/15/00 12/20/00 05/2002 07/13/01
15:09 11/01/00 10/11/00 01/02/01 11/16/00 12/01/00 12/20/00 05/2002 01/02/01 01/22/01 05/2002 07/29/01
15:10 11/15/00 10/24/00 01/16/01 11/30/00 12/15/00 12/20/00 05/2002 01/16/01 01/22/01 05/2002 08/12/01
15:11 12/01/00 11/07/00 02/01/01 12/18/00 01/02/01 01/22/01 05/2002 01/30/01 02/20/01 05/2002 08/28/01
15:12 12/15/00 11/22/00 02/15/01 01/02/01 01/16/01 01/22/01 05/2002 02/13/01 02/20/01 05/2002 09/11/01
EXPLANATION OF THE PUBLICATION SCHEDULE
This Publication Schedule is prepared by the Office of Administrative Hearings as a public service and the computation of time periods are not to be deemed binding or controlling. Time is
computed according to 26 NCAC 2C .0302 and the Rules of Civil Procedure, Rule 6.
GENERAL
The North Carolina Register shall be
published twice a month and contains the
following information submitted for
publication by a state agency:
(1) temporary rules;
(2) notices of rule-making proceed-ings;
(3) text of proposed rules;
(4) text of permanent rules approved by
the Rules Review Commission;
(5) notices of receipt of a petition for
municipal incorporation, as required
by G.S. 120-165;
(6) Executive Orders of the Governor;
(7) final decision letters from the U.S.
Attorney General concerning
changes in laws affecting voting in a
jurisdiction subject of Section 5 of
the Voting Rights Act of 1965, as
required by G.S. 120-30.9H;
(8) orders of the Tax Review Board
issued under G.S. 105-241.2; and
(9) other information the Codifier of
Rules determines to be helpful to the
public.
COMPUTING TIME: In computing time in
the schedule, the day of publication of the
North Carolina Register is not included.
The last day of the period so computed is
included, unless it is a Saturday, Sunday, or
State holiday, in which event the period
runs until the preceding day which is not a
Saturday, Sunday, or State holiday.
FILING DEADLINES
ISSUE DATE: The Register is published on
the first and fifteen of each month if the
first or fifteenth of the month is not a
Saturday, Sunday, or State holiday for
employees mandated by the State
Personnel Commission. If the first or
fifteenth of any month is a Saturday,
Sunday, or a holiday for State employees,
the North Carolina Register issue for that
day will be published on the day of that
month closest to (either before or after) the
first or fifteenth respectively that is not a
Saturday, Sunday, or holiday for State
employees.
LAST DAY FOR FILING: The last day for
filing for any issue is 15 days before the
issue date excluding Saturdays, Sundays,
and holidays for State employees.
NOTICE OF RULE-MAKING PROCEEDINGS
END OF COMMENT PERIOD TO A NOTICE OF
RULE-MAKING PROCEEDINGS: This date is 60
days from the issue date. An agency shall
accept comments on the notice of rule-making
proceeding until the text of the proposed rules
is published, and the text of the proposed rule
shall not be published until at least 60 days
after the notice of rule-making proceedings
was published.
EARLIEST REGISTER ISSUE FOR PUBLICATION
OF TEXT: The date of the next issue following
the end of the comment period.
NOTICE OF TEXT
EARLIEST DATE FOR PUBLIC HEARING:
The hearing date shall be at least 15 days
after the date a notice of the hearing is
published.
END OF REQUIRED COMMENT PERIOD
(1) RULE WITH NON-SUBSTANTIAL
ECONOMIC IMPACT: An agency shall
accept comments on the text of a proposed
rule for at least 30 days after the text is
published or until the date of any public
hearings held on the proposed rule,
whichever is longer.
(2) RULE WITH SUBSTANTIAL
ECONOMIC IMPACT: An agency shall
accept comments on the text of a proposed
rule published in the Register and that has
a substantial economic impact requiring a
fiscal note under G.S. 150B-21.4(b1) for
at least 60 days after publication or until
the date of any public hearing held on the
rule, whichever is longer.
DEADLINE TO SUBMIT TO THE RULES
REVIEW COMMISSION: The Commission
shall review a rule submitted to it on or
before the twentieth of a month by the last
day of the next month.
FIRST LEGISLATIVE DAY OF THE NEXT
REGULAR SESSION OF THE GENERAL
ASSEMBLY: This date is the first
legislative day of the next regular session
of the General Assembly following
approval of the rule by the Rules Review
Commission. See G.S. 150B-21.3,
Effective date of rules.
IN ADDITION
15:3 NORTH CAROLINA REGISTER August 1, 2000 221
This Section contains public notices that are required to be published in the Register or have been approved by the Codifier of
Rules for publication.
TITLE 15A – DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES
CHAPTER 2 – ENVIRONMENTAL MANAGEMENT
SUBCHAPTER 2B – SURFACE WATERS AND WETLANDS STANDARDS
SECTION .0300 – ASSIGNMENT OF STREAM CLASSIFICATIONS
TIME EXTENSION FOR 15A NCAC 2B .0300
Informational Item
A public hearing was held in Wake Forest on July 13, 2000 for the proposed surface water reclassifications of the upper Neuse River
from Falls Lake Dam to a point downstream which includes Richland Creek and unnamed tributaries to the Neuse River upstream of
the proposed intake to Falls Lake Dam to be reclassified from Class C NSW to Class Water Supply-IV NSW with a segment being
reclassified to Water Supply-IV Critical Area (CA) NSW. The hearing was also for the proposed reclassification of Fantasy Lake as a
Water Supply CA for the Town of Rolesville. The proposed rule texts were published in the June 15, 2000 (14:24) NC Register.
Officials representing the Town of Wake Forest have requested an extension of the comment period for the proposed Neuse River
reclassification from July 27, 2000 to August 10, 2000 in order to better address local issues pertaining to local zoning and allow time
for comments to be received regarding that issue. The Hearing Officer, Paul Rawls, has agreed to extend the hearing record for the
subject proposed reclassification until August 10, 2000. The comment period for the proposed reclassification of Fantasy Lake will
also be extended until August 10, 2000. Comments on the proposed reclassifications may be submitted to: Jeff Manning, DWQ
Planning Branch, 1617 Mail Service Center, Raleigh, NC 27699. Tel: (919) 733-5083, ext. 579.
RULE-MAKING PROCEEDINGS
222 NORTH CAROLINA REGISTER August 1, 2000 15:3
A Notice of Rule-making Proceedings is a statement of subject matter of the agency's proposed rule making. The agency must
publish a notice of the subject matter for public comment at least 60 days prior to publishing the proposed text of a rule.
Publication of a temporary rule serves as a Notice of Rule-making Proceedings and can be found in the Register under the
section heading of Temporary Rules. A Rule-making Agenda published by an agency serves as Rule-making Proceedings and can
be found in the Register under the section heading of Rule-making Agendas. Statutory reference: G.S. 150B-21.2.
TITLE 12 – DEPARTMENT OF JUSTICE
CHAPTER 7 – PRIVATE PROTECTIVE SERVICES
Notice of Rule-making Proceedings is hereby given by the NC
Private Protective Services Board in accordance with G.S.
150B-21.2. The agency shall subsequently publish in the
Register the text of the rule(s) it proposes to adopt as a result of
this notice of rule-making proceedings and any comments
received on this notice.
Citation to Existing Rule Affecte d by this Rule-making: 12
NCAC 7D .0104 - Other rules may be proposed in the course of
the rule-making process.
Authority for the Rule-making: G.S. 74C-5
Statement of the Subject Matter: The terms "Administrator"
and "Director" will be added to the definition section.
Reason for Proposed Action: The term "Administrator" is not
consistent with the Department of Justice personnel terminology,
which refers to the position as "Director." Therefore, the terms
should be synonymous and the amendment to the rule will
attempt to define the meanings.
Comment Procedures: Written comments may be submitted to
the following address: W. Wayne Woodard, NC Private
Protective Services Board, 3320 Old Garner Rd., Raleigh, NC
27626.
* * * * * * * * * * * * * * * * * * * *
CHAPTER 11 – NORTH CAROLINA ALARM SYSTEMS
LICENSING BOARD
Notice of Rule-making Proceedings is hereby given by the NC
Alarm Systems Licensing Board in accordance with G.S. 150B-
21.2. The agency shall subsequently publish in the Register the
text of the rule(s) it proposes to adopt as a result of this notice of
rule-making proceedings and any comments received on this
notice.
Citation to Existing Rule Affected by this Rule-making: 12
NCAC 11 - Other rules may be proposed in the course of the
rule-making process.
Authority for the Rule-making: G.S. 74D-5(a)(1,2,3,4,5,&6),
74D-6
Statement of the Subject Matter: The Board proposes
adopting rules to establish a "grading system" that will be used
during background investigations of applicants for license or
registration. The "grading system" will be used to determine if
an applicant, who has a criminal record, has the requisite good
moral character to hold a license or registration.
Reason for Proposed Action: Currently, the Board has no
rules to establish a standard for good moral character for
applicants with a prior criminal history. To prevent arbitrary
decision making, the Board believes a standard should be
established which can be used by the staff or the industry in
reviewing applicants for a license or a registration.
Comment Procedures: The record is open for receipt of
written comments. Such comments, to become part of the
record, must be submitted to Administrator W. Wayne Woodard,
Alarm Systems Licensing Board, 3320 Old Garner Rd, Raleigh,
NC 27626.
TITLE 15A – DEPARTMENT OF ENVIRONMENT AND
NATURAL RESOURCES
CHAPTER 7 – COASTAL MANAGEMENT
Notice of Rule-making Proceedings is hereby given by the
Coastal Resources Commission in accordance with G.S. 150B-
21.2. The agency shall subsequently publish in the Register the
text of the rule(s) it proposes to adopt as a result of this notice of
rule-making proceedings and any comments received on this
notice.
Citation to Existing Rule Affected by this Rule-making: 15A
NCAC 7H .0308, .1705 - Other rules may be proposed in the
course of the rule-making process.
Authority for the Rule-making: G.S. 113A-119.1
Statement of the Subject Matter: Sandbag placement and
Erosion Control Structure placement.
Reason for Proposed Action: A petition for rulemaking was
received from the Town of Surf City asking that the rules on
sandbag erosion control structures of the Coastal Resources
Commission's administrative rules be amended so that a more
reasonable standard is applied to determine removal of the
structures when a community is actively pursuing a beach
nourishment project. It has been determined that these erosion
control structures need to stay in place to encourage and allow
RULE-MAKING PROCEEDINGS
15:3 NORTH CAROLINA REGISTER August 1, 2000 223
adequate time for beach re-nourishment and for re-vegetation
efforts to be carried out.
Comment Procedures: Please submit comments to Charles
Jones, 151-B Highway 24, Hestron Plaza II, Morehead City, NC
28557.
* * * * * * * * * * * * * * * * * * *
CHAPTER 13 – SOLID WASTE MANAGEMENT
Notice of Rule-making Proceedings is hereby given by DENR
Commission for Health Services in accordance with G.S. 150B-
21.2. The agency shall subsequently publish in the Register the
text of the rule(s) it proposes to adopt as a result of this notice of
rule-making proceedings and any comments received on this
notice.
Citation to Existing Rule Affected by this Rule-making: 15A
NCAC 13A .0107; .0109; .0113; .0119 - Other rules may be
proposed in the course of the rule-making process.
Authority for the Rule-making: G.S. 130A-294(c); 150B-21.6
Statement of the Subject Matter:
15A NCAC 13A .0107 - STDS APPLICABLE TO
GENERATORS OF HAZARDOUS WASTE – PART 262
Establishes standards which apply to generators of hazardous
waste.
15A NCAC 13A .0109 - STANDARDS FOR
OWNERS/OPERATORS OF HWTSD FACILITIES – PART 264
Establishes standards for owners and/or operators of hazardous
waste facilities (treatment, storage or disposal facilities).
15A NCAC 13A .0113 - THE HAZARDOUS WASTE PERMIT
PROGRAM – PART 270 Establishes permit application
information requirements and permit procedures.
15A NCAC 13A .0119 - STANDARDS FOR UNIVERSAL
WASTE MANAGEMENT – PART 273 Streamlines hazardous
waste management regulations governing the collection and
management of certain widely generated wastes, known as
"universal waste". This universal waste rule covers hazardous
waste batteries (e.g. nickel cadmium), certain hazardous waste
pesticides, and mercury-containing thermostats. By reducing
regulatory requirements, this rule will encourage state and local
governments and manufacturers to establish environmentally
sound collecting programs, and retailers to participate in them.
Reason for Proposed Action:
15A NCAC 13A .0107 - STDS APPLICABLE TO
GENERATORS OF HAZARDOUS WASTE – PART 262
Eliminated requirements to use the North Carolina Hazardous
Waste Manifest form. Instead the Federal Hazardous Waste
Manifest form shall be used.
15A NCAC 13A .0109 - STANDARDS FOR
OWNERS/OPERATORS OF HWTSD FACILITIES – PART 264
The proposed amendment adds 40 CFR 264.554 "Staging Piles"
to Paragraph (s) (Subpart S), "Corrective Action for Solid Waste
Management Units".
15A NCAC 13A .0113 - THE HAZARDOUS WASTE PERMIT
PROGRAM – PART 270 The proposed amendment incorporates
by reference all of Subpart F "Special Forms of Permits", and
excludes 40 CFR 270.68 which is not incorporated by reference.
.0113(i) has been revised to properly exclude those Federal
Regulations that North Carolina is not adopting. Section 270.68
"Remedial Action Plans (RAPs)" allows less stringent provisions
in remediation at North Carolina hazardous waste sites.
15A NCAC 13A .0119 - STANDARDS FOR UNIVERSAL
WASTE MANAGEMENT – PART 273 The proposed amendment
adds 40 CFR 273.7 which is reserved, Section 273.8
"Applicability—household and conditionally exempt small
quantity generator waste", and 273.9 "Definitions" to
Paragraph (a), (Subpart A), "General". North Carolina had
previously adopted the "Definitions" as 40 CFR 273.6. EPA
renumbered the "Definitions" from 273.6 to 273.9 and added
273.8 to describe the applicability of this regulation.
Comment Procedures: Written comments may be submitted to
Jill Burton, Acting Chief, Hazardous Waste Section, Division of
Waste Management, 1646 Mail Service Center, Raleigh, NC
27699-1646.
PROPOSED RULES
224 NORTH CAROLINA REGISTER August 1, 2000 15:3
This Section contains the text of proposed rules. At least 60 days prior to the publication of text, the agency published a Notice of
Rule-making Proceedings. The agency must accept comments on the proposed rule for at least 30 days from the publication date,
or until the public hearing, or a later date if specified in the notice by the agency. The required comment period is 60 days for a
rule that has a substantial economic impact of at least five million dollars ($5,000,000). Statutory reference: G.S. 150B-21.2.
TITLE 10 – DEPARTMENT OF HEALTH AND HUMAN
SERVICES
Notice is hereby given in accordance with G.S. 150B-21.2 that
the NC Child Care Commission intends to amend the rules cited
as 10 NCAC 3U .0302, .0604, .0803, .1304, .1601, .1604, .1606,
.1702, .1719-.1722, .1801, .1901, .1903-.1904, .2006-.2012,
.2101, .2201, .2206. Notice of Rule-making Proceedings was
published in the Register on March 1, 2000.
Proposed Effective Date: April 1, 2001
Public Hearing:
Date: August 17, 2000
Time: 4:00 p.m. – 7:00 p.m.
Location: Division of Child Development, Room 300,
320 Chapanoke Rd., Suite 120, Raleigh, NC 27603
Reason for Proposed Action: The Child Care Commission
proposes amending these rules to protect the health and safety of
children in child care centers and family child care homes. This
includes provision for evacuating children safely in case of
emergency, safe administration of medication, safe storage of
combustible materials, and provisions for discipline practices to
be age and developmentally appropriate. Other revisions are
proposed relating to recordkeeping, application for child care
licenses, and technical changes to update terminology and
references.
Comment Procedures: Anyone wishing to comment of these
proposed rules or to request copies of the rules should contact
Janice Fain, APA Coordinator, NC Division of Child
Development, 2201 Mail Service Center, Raleigh, NC 27699-
2201, phone 919-662-4543. Written comments will be accepted
through September 1, 2000. Oral comments may be made
during the public hearing. The Commission Chairperson may
impose time limits for oral remarks.
Fiscal Impact
State 10 NCAC 3U .0604
Local 10 NCAC 3U .0604
Substantive (>$5,000,000)
None 10 NCAC 3U .0302, .0803, .1304, .1601, .1604
.1606, .1702, .1719-.1722, .1801, .1901, .1903-.1904, .2006-
.2012, .2101, .2201, .2206
CHAPTER 3 – FACILITY SERVICES
SUBCHAPTER 3U – CHILD CARE STANDARDS
SECTION .0300 – PROCEDURES FOR OBTAINING A
LICENSE
10 NCAC 3U .0302 APPLICATION FOR A LICENSE FOR
A CHILD CARE CENTER
(a) The individual who will be legally responsible for the
operation of the center, which includes assuring compliance with
the licensing law and standards, shall apply for a license using
the form provided by the Division. If the operator will be a
group, organization, or other entity, an officer of the entity who
is legally empowered to bind the operator shall complete and
sign the application.
(b) The applicant shall arrange for inspections of the center by
the local health, building and fire inspectors. The applicant shall
provide an approved inspection report signed by the appropriate
inspector to the Division representative.
(1) A provisional classification may be accepted in
accordance with Rule .0401(1) of this Subchapter.
(2) When a center does not conform with a specific
building, fire, or sanitation standard, the appropriate
inspector may submit a written explanation of how
equivalent, alternative protection is provided. The
Division may accept the inspector's documentation in
lieu of compliance with the specific standard. Nothing
in this Regulation is to preclude or interfere with
issuance of a provis ional license pursuant to Section
.0400 of this Subchapter.
(c) The applicant, or the person responsible for the day-to-day
operation of the center, shall be able to describe the plans for the
daily program, including room arrangement, staffing patterns,
equipment, and supplies, in sufficient detail to show that the
center will comply with applicable requirements for activities,
equipment, and staff/child ratios for the capacity of the center
and type of license requested. The applicant shall make the
following written information available to the Division for
review to verify compliance with provisions of this Subchapter
and the licensing law:
(1) daily schedules,
(2) activity plans,
(3) emergency care plan,
(4) discipline policy,
(5) incident reports,
(6) incident logs,
(7) a copy of the certified criminal history check for the
applicant, or the applicant’s designee as defined in Rule
.2701(g) of this Subchapter, from the Clerk of Superior
Court's office in the county or counties where the
individual has resided during the previous 12 months.
(d) The applicant shall, at a minimum, demonstrate to the
Division representative that measures will be implemented to
have the following information in the center's files and readily
available to the representative for review:
(1) Staff records which include an application for
employment and date of birth; documentation of
PROPOSED RULES
15:3 NORTH CAROLINA REGISTER August 1, 2000 225
previous education, training, and experience; medical
and health records; documentation of participation in
training and staff development activities; and required
criminal records check documentation;
(2) Children's records which include an application for
enrollment; medical and immunization records; and
permission to seek emergency medical care;
(3) Daily attendance records;
(4) Records of monthly fire drills giving the date each drill
is held, the time of day, the length of time taken to
evacuate the building, and the signature of the person
that conducted the drill;
(5) Records of monthly playground inspections
documented on a checklist provided by the Division;
and
(6) Records of medication administered.
(e) The Division representative shall measure all rooms to be
used for child care and shall assure that an accurate sketch of the
center's floor plan is part of the application packet. The Division
representative shall enter the dimensions of each room to be
used for child care, including ceiling height, and shall show the
location of the bathrooms, doors, and required exits on the floor
plan.
(f) The Division representative shall make one or more
inspections of the center and premises to assess compliance with
all applicable standards.
(1) If the center is in compliance, the Division shall issue
the license.
(2) If the center does not comply, the representative may
recommend issuance of a provisional license in
accordance with Section .0400 of this Subchapter or the
representative may recommend denial of the
application. Final disposition of the recommendation to
deny is the decision of the Division.
(3) The license shall be displayed in an area that parents are
able to view daily.
(g) When If a person applies for a child care facility license
license, after any child care facility license held by that person
has been revoked or summarily suspended by the Division
within the previous 12 months, or during the appeal if a person
appeals the Division's revocation or summary suspension, the
Division may deny the application for another the license based
on the compliance history of the person applying for a license.
license under the following circumstances:
(1) if any child care facility license previously held by that
person has been denied, revoked or summarily
suspended by the Division;
(2) if the Division has initiated denial, revocation or
summary suspension proceedings against any child care
facility license previously held by that person and the
person voluntarily relinquished the license;
(3) during the appeal of a denial, revocation or summary
suspension of any child care facility license previously
held by that person; or
(4) if the Divis ion determines that the applicant has a
relationship with an operator or former operator who
previously held a license under an administrative action
described in Paragraph(g)(1), (2), or (3) of this Rule.
As used in this Rule, an applicant has a relationship
with a former operator if the former operator would be
involved with the applicant's child care facility in one
or more of the following ways:
(A) would participate in the administration or operation
of the facility;
(B) has a financial interest in the operation of the
facility;
(C) provides care to children at the facility;
(D) resides in the facility; or
(E) would be on the facility's board of directors, be a
partner of the corporation, or otherwise have
responsibility for the administration of the
business.
Authority G.S. 110-88(2); 110-88(5); 110-91; 110-92; 110-93;
110-99; 143B-168.3.
SECTION .0600 – SAFETY REQUIREMENTS FOR
CHILD CARE CENTERS
10 NCAC 3U .0604 GENERAL SAFETY
REQUIREMENTS
(a) Potentially hazardous items, such as firearms and
ammunition, hand and power tools, nails, chemicals, lawn
mowers, gasoline or kerosene, archery equipment, propane
stoves, whether or not intended for use by children, shall be
stored in locked areas or with other appropriate safeguards, or
shall be removed from the premises.
(b) Electrical outlets not in use which are located in space used
by the children shall be covered with safety plugs unless located
behind furniture or equipment that cannot be moved by a child.
(c) Electric fans shall be mounted out of the reach of children or
shall be fitted with an appropriate mesh guard to prevent access
by children.
(d) All small electrical appliances shall be used only in
accordance with the manufacturer's instructions.
(e) Electrical cords shall not be accessible to infants and
toddlers. Extension cords, except as approved by the local fire
inspector, shall not be used. Frayed or cracked electrical cords
shall be replaced.
(f) All materials used for starting fires, such as matches and
lighters, shall be kept in locked storage or shall be stored out of
the reach of children.
(g) Smoking shall not be permitted in space used by children
when children are present. All smoking materials shall be kept
in locked storage or out of the reach of children.
(h) Fuel burning heaters, fireplaces and floor furnaces shall be
provided with a protective screen attached securely to substantial
supports to prevent access by children and to prevent objects
from being thrown into them.
(i) Plants that are toxic shall not be in indoor or outdoor space
that is used by or is accessible to children.
(j) The outdoor play area shall be protected by a fence or other
protection. The height shall be a minimum of four feet and the
top of the fence shall be free of protrusions by January 1, 1999.
The requirement disallowing protrusions on the tops of fences
shall not apply to fences six feet high or above. The fencing
shall exclude fixed bodies of water such as ditches, quarries,
canals, excavations, and fish ponds. Gates to the fenced outdoor
play area shall remain securely closed while children occupy the
area. When the center uses areas outside the fenced outdoor play
area for children's activities or takes children off the premises for
PROPOSED RULES
226 NORTH CAROLINA REGISTER August 1, 2000 15:3
play or outings, the parent of each child shall give written
permission for the child to be included in such activities. The
permission may be:
(1) a one-time, blanket permission for all activities;
(2) a one-time, blanket permission for a specific activity at
any time; or
(3) a one-time permission for a specific activity at a
designated time.
The center shall maintain the signed permission in the child's
record. When children are taken off the premises, staff
accompanying the children shall have a list of the names of all
children participating in the outing. When the center provides
transportation for children, the center shall furnish parents the
names of all regularly scheduled drivers.
(k) Air conditioning units shall be located so that they are not
accessible to children or shall be fitted with a mesh guard to
prevent objects from being thrown into them.
(l) Gas tanks shall be located so they are not accessible to the
children or shall be in a protective enclosure or surrounded by a
protective guard.
(m) Cribs and playpens shall be placed so that the children
occupying them shall not have access to cords or ropes, such as
venetian blind cords.
(n) Children shall not be allowed to play on outdoor equipment
that is too hot to touch.
(o) The indoor and outdoor premises shall be checked daily for
debris, vandalism and broken equipment. Debris shall be
removed and disposed of appropriately.
(p) The playground surface area shall be checked at least
weekly to assure that surface material is maintained to assure
continued resiliency.
(q) Following completion of safety training by the administrator
or other staff person as required by Rule .0705(e) of this
Subchapter, a monthly playground inspection shall be conducted
and a record of each inspection shall be completed. This staff
person shall use a playground inspection checklist provided by
the Division. The checklist shall be signed by the person who
conducts the inspection and shall be maintained in the center's
files for review by a representative of the Division.
(r) Plastic bags, toys and toy parts small enough to be
swallowed, and materials that can be easily torn apart such as
foam rubber and styrofoam, shall not be accessible to children
under three years of age, except that styrofoam plates and larger
pieces of foam rubber may be used for supervised art activities
and styrofoam plates may be used for food service. Latex and
rubber balloons shall not be accessible to children under five
years of age.
(s) When non-mobile children are in care, a crib or other
approved device shall be available for evacuation in case of fire
or other emergency. The crib or other approved device shall be
fitted with wheels in order to be easily moveable, have a
reinforced bottom, and shall be able to fit through the designated
fire exit. For centers that do not meet institutional building code,
and the exit is more than eight inches above grade, the center
shall develop a plan to ensure a safe and timely evacuation of the
crib or other approved device. This plan shall be demonstrated
to a Division representative for review and approval. During the
monthly fire drills required by Rule 10 NCAC 3U .0302d(4), the
evacuation crib or other approved device shall be used in the
manner described in the evacuation plan.
Authority G.S. 110-85(1); 110-91(3),(6); 143B-168.3.
SECTION .0800 – HEALTH STANDARDS FOR
CHILDREN
10 NCAC 03U .0803 ADMINISTERING
MEDICATION
(a) No drug or medication shall be administered to any child
without specific instructions from the child's parent, a physician,
or other authorized health professional. No drug or medication
shall be administered after its expiration date. No drug or
medication shall be administered for non-medical reasons, such
as to induce sleep.
(1) Prescribed medicine shall be in its original container
bearing the pharmacist's label which lists the child's
name, date the prescription was filled, the physician's
name, the name of the medicine or the prescription
number, and directions for dosage, or be accompanied
by written instructions for dosage, bearing the child's
name, which are dated and signed by the prescribing
physician or other health professional. Prescribed
medicine shall be administered as authorized in writing
by the child's parent, only to the person for whom it is
prescribed.
(2) Over-the-counter medicines, such as cough syrup,
decongestant, acetaminophen, ibuprofen, topical
teething medication, topical antibiotic cream for
abrasions, or medication for intestinal disorders shall be
in its original container and shall be administered as
authorized in writing by the child's parent, not to
exceed amounts and frequency of dosage specified in
the printed instructions accompanying the medicine.
The parent's authorization shall give the child's name,
the specific name of the over-the-counter medicine,
dosage instructions, the parent's signature, and the date
signed. Over-the-counter medicine may also be
administered in accordance with written instructions
from a physician or other authorized health
professional.
(3) When any questions arise concerning whether
medication provided by the parent should be
administered, that medication shall not be administered
without signed, written dosage instructions from a
licensed physician or authorized health professional.
(4) A written statement from a parent may give blanket
permission for up to six months to authorize
administration of medication for asthma and allergic
reactions. A written statement from a parent may give
blanket permission for up to one year to authorize
administration of sunscreen and over-the-counter
diapering creams. The written statement shall describe
the specific conditions under which these medications
and creams are to be administered and detailed
instructions on how they are to be administered.
(5) A written statement from a parent may give blanket
permission to administer a one-time, weight appropriate
dose of acetaminophen in cases where the child has a
fever and the parent cannot be reached.
(b) Any medication remaining after the course of treatment is
completed shall be returned to the child's parents.
PROPOSED RULES
15:3 NORTH CAROLINA REGISTER August 1, 2000 227
(c) Any time medication other than sunscreen or diapering
creams is administered by center personnel to children receiving
care, the child's name, the date, time, amount and type of
medication given, and the name and signature of the person
administering the medication shall be recorded. This
information shall be noted on a medication permission slip, or on
a separate form developed by the provider which includes the
required information. This information shall be available for
review by a representative of the Division during the time period
the medication is being administered and for at least six months
after the medication is administered.
Authority G.S. 110-91(1),(9); 143B-168.3.
SECTION .1300 – BUILDING CODE REQUIREMENTS
FOR CHILD CARE CENTERS
10 NCAC 03U .1304 REQUIREMENTS FOR CHILD
CARE CENTERS LICENSED IN A RESIDENCE
For the purpose of carrying out the provisions of G.S. 110-91(4),
the North Carolina Building Code standards in Volume I,
General Construction, for Large Day Care Homes developed by
the Building Code Council are hereby incorporated by reference
by the Child Care Commission and include subsequent
amendments for child care centers licensed in a an occupied
residence for three to 12 children when any preschool-aged
children are in care, or for three to 15 children when only
school-aged children are in care. A copy of the North Carolina
Building Code standards is on file at the Division of Child
Development located at the address given in Rule .0102 of this
Subchapter and will be available for public inspection during
regular business hours.
Authority G.S. 110-91(4); 143B-168.3.
SECTION .1600 - REQUIREMENTS FOR VOLUNTARY
ENHANCED PROGRAM STANDARDS
10 NCAC 03U .1601 ADMINISTRATIVE POLICIES
REQUIRED
AA centers and other centers Centers seeking a two through five
star rated license points for through the voluntary enhanced
program standards shall have administrative policies and
practices which provide for responsible selection and training of
staff, on-going communication with and opportunities for
participation by parents, sound operational and fiscal
management, and objective evaluation of the program,
management and staff in accordance with the rules of this
Section.
Authority G.S. 110-88(7); 143B-168.3.
10 NCAC 03U .1604 SPACE REQUIREMENTS
(a) There shall be at least 30 square feet inside space per child
present at any one time and 100 square feet outside space per
child present at any one time. Or, there shall be at least 35
square feet inside space per child present at any one time and
100 square feet outside space per child for at least 50 percent of
the total number of children present at any one time.
(b) To achieve two points for program standards, centers shall
meet all requirements for voluntary enhanced program standards
in Section .1600 of this Subchapter, except that centers may
meet either the space requirements in Paragraph(a) of this Rule
or the staff/child ratios required in 10 NCAC 03U .1606(a).
(b)(c) There must be an area which can be arranged for
adminis trative and private conference activities.
Authority G.S. 110-88(7); 143B-168.3.
10 NCAC 03U .1606 STAFF/CHILD RATIOS
(a) The center shall comply with the staff-child ratios and
maximum group sizes set in this Rule.
MAXIMUM
AGE STAFF NO. OF CHILDREN GROUP SIZE STAFF
Birth to 12 Months 1 5 10 2
1 to 2 Years 1 6 12 2
2 to 3 Years 1 9 18 2
3 to 4 Years 1 10 20 2
4 to 5 Years 1 13 25 2
5 to 6 Years 1 15 25 2
6 Years and Older 1 20 25 2
(b) All provisions, excluding staff/child ratios and group sizes
of Rules .0712 and .0713 of this Subchapter shall apply.
(c) To achieve two points for program standards, centers shall
meet all requirements for voluntary enhanced program standards
in Section .1600 of this Subchapter, except that centers may
meet either the staff/child ratios required in Paragraph(a) of this
Rule or the space requirements in 10 NCAC 03U .1604(a).
Authority G.S. 110-88(7); 143B-168.3.
SECTION .1700 – FAMILY CHILD CARE HOME
STANDARDS
10 NCAC 03U .1702 APPLICATION FOR A LICENSE
FOR A FAMILY CHILD CARE HOME
(a) Any person who plans to operate a family child care home
shall apply for a license using a form provided by the Division.
The applicant shall submit the completed application, which
complies with the following, to the Division:
(1) Only one licensed family child care home shall operate
at the location address of any home.
(2) The applicant shall list each location address where a
licensed family child care home will operate.
(b) When a family child care home will operate at more than
one location address by cooperative arrangement among two or
more families, the following procedures shall apply:
(1) One parent whose home is used as a location address
shall be designated the coordinating parent and shall co-sign
the application with the applicant.
PROPOSED RULES
228 NORTH CAROLINA REGISTER August 1, 2000 15:3
(2) The coordinating parent is responsible for knowing the
current location address at all times and shall provide
the information to the Division upon request.
(c) The operator shall assure that the structure in which the
family child care home is located complies with the following
requirements:
(1) Comply with the North Carolina Building Code for
family child care homes or have written approval for
use as a family child care home by the local building
inspector as follows:
(A) Meet Volume I-B Uniform Residential Building
Code or be a manufactured home bearing a third
party inspection label certifying compliance with
the Federal Manufactured Home Construction and
Safety Standards or certifying compliance with
construction standards adopted and enforced by the
State of North Carolina. Homes shall be installed
in accordance with NC Manufactured/Mobile
Home Regulations published by the NC
Department of Insurance;
Exception: Single wide
manufactured homes will be limited
to a maximum of three preschool-aged
children (not more than two may
be two years of age or less) and two
school-aged children.
(B) All children shall be kept on the ground level with
an exit at grade;
(C) All homes shall be equipped with an electrically
operated (with a battery backup) smoke detector, or
one electrically operated and one battery operated
smoke detector located next to each other;
(D) All homes shall be provided with at least one five
lb. 2-A:10-B:C type extinguisher readily accessible
for every 2,500 square feet of floor area; and
(E) Fuel burning space heaters, fireplaces and floor
furnaces which are listed and approved for that
installation and are provided with a protective
screen attached securely to substantial supports
will be allowed. However, unvented fuel burning
heaters and portable electric space heaters of all
types are prohibited.
(2) Assure that all indoor areas used by children are heated
in cool weather and ventilated in warm weather.
(3) Cover or insulate hot pipes or radiators which are
accessible to the children.
(d) The applicant shall also submit supporting documentation
with the application for a license to the Division. The
supporting documentation shall include a copy of the applicant’s
certified criminal history check from the Clerk of Superior
Court’s office in the county or counties where the individual has
resided during the previous 12 months; a copy of documentation
of completion of a first aid and cardiopulmonary resuscitation
(CPR) course; proof of negative results of the applicant’s
tuberculosis test completed within the past 12 months; a
completed health questionnaire; a copy of current pet
vaccinations for any pet in the home; a negative well water
bacteriological analysis if the home has a private well; copies of
any inspections required by local ordinances; and any other
documentation required to support the issuance of a license
required by the Division.
(e) Upon receipt of an acceptable application and supporting
documentation as required by the Division, a Division
representative shall make an announced visit to each home
unless the applicant meets the criteria in Paragraph (g) of this
Rule to determine compliance with the standards, to offer
technical assistance when needed, and to provide information
about local resources.
(1) If the home is found to be in compliance with the
applicable requirements of G.S. 110 and this Section, a
license shall be issued.
(2) If the home is not in compliance but has the potential to
comply, the Division representative shall establish with
the operator a reasonable time period for the home to
achieve full compliance. If the Division representative
determines that the home is in compliance within the
established time period, a license shall be issued.
(3) If the home is not in compliance, cannot potentially
comply, or fails to comply within the appropriate time,
the Division shall deny the application. Final
disposition of the recommendation to deny is the
decision of the Division.
(f) In emergency situations as determined by the Division, the
Division may allow the applicant to temporarily operate prior to
the Division representative’s visit described in Paragraph (e) of
this Rule. A person is not able to operate legally until he or she
has received from the Division either temporary permission to
operate or a license.
(g) When If a person applies for a child care facility license
license, after any child care facility license held by that person
has been revoked or summarily suspended by the Division
within the previous 12 months, or during the appeal if a person
appeals the Division's revocation or summary suspension, the
Div ision may deny the application for another the license based
on the compliance history of the person applying for a license.
license under the following circumstances:
(1) if any child care facility license previously held by that
person has been denied, revoked or summarily
suspended by the Division;
(2) if the Division has initiated denial, revocation or
summary suspension proceedings against any child care
facility license previously held by that person and the
person voluntarily relinquished the license;
(3) during the appeal of a denial, revocation or summary
suspension of any child care facility license previously
held by that person; or
(4) if the Division determines that the applicant has a
relationship with an operator or former operator who
previously held a license under an administrative action
described in Paragraph(g)(1), (2), or (3) of this Rule.
As used in this Rule, an applicant has a relationship
with a former operator if the former operator would be
involved with the applicant's child care facility in one
or more of the following ways:
(A) would participate in the administration or operation
of the facility;
(B) has a financial interest in the operation of the
facility;
(C) provides care to the children at the facility;
(D) resides in the facility; or
(E) would be on the facility's board of director's, be a
partner of the corporation, or otherwise have
PROPOSED RULES
15:3 NORTH CAROLINA REGISTER August 1, 2000 229
responsibility for the administration of the
business.
(h) Use of the license is limited to the following conditions:
(1) The license cannot be bought, sold, or transferred from
one individual to another.
(2) The license is valid only for the location
address/addresses listed on it.
(3) The license must be returned to the Division in the
event of termination or revocation.
(4) The license shall be displayed in a prominent place that
parents are able to view daily and shall be shown to
each child's parent, guardian, or custodian when the
child is enrolled.
(i) A licensee is responsible for notifying the Division whenever
a change occurs which affects the information shown on the
license.
Authority G.S. 110-88(5); 110-91; 110-93; 110-99; 143B-168.3.
10 NCAC 03U .1719 REQUIREMENTS FOR A SAFE
INDOOR/OUTDOOR ENVIRONMENT
The operator shall maintain a safe indoor and outdoor
environment for the children in care. In addition, the operator
shall: The operator shall make all necessary efforts to provide a
safe indoor and outdoor environment for the children in care.
The operator shall:
(1) keep all areas used by the children, indoors and
outdoors, clean and orderly and free of items which are
potentially hazardous to children. This includes the
removal of small items that a child can swallow. In
addition, loose nails or screws and splinters shall be
removed on inside and outside equipment.
(2) safely store equipment and supplies such as
lawnmowers, power tools, or nails, so they are
inaccessible to children.
(3) ensure that all stationary outdoor equipment is firmly
anchored and is not installed over concrete or asphalt.
Footings which anchor the equipment shall not be
exposed.
(4) securely mount electric fans out of the reach of children
or have a mesh guard on each fan.
(5) cover all electrical outlets not in use and remove old,
cracked or frayed cords in occupied outlets.
(6) have solid and safe indoor and outdoor stairs and steps
if these are used by the children. Indoor and outdoor
stairs with two or more steps which are used by the
children shall be railed. Indoor stairs with more than
two steps shall be made inaccessible to children in care
who are two years old or younger.
(7) maintain any swimming pools or wading pools on the
premises in a manner which will safeguard the lives and
health of the children. All swimming or wading pools
used by children in care shall meet the "Rules
Governing Public Swimming Pools," in accordance
with 15A NCAC 18A .2500 which are hereby
incorporated by reference including subsequent
amendments. A copy of these Rules is on file at the
Division at the address given in Rule .0102 of this
Subchapter or may be obtained at no cost by writing the
North Carolina Department of Environment and Natural
Resources, Division of Environmental Health, PO Box
29534, Raleigh, NC 27626-0534.
(8) enclose any in-ground swimming pools by a fence four
feet high to prevent chance access by children. The
swimming pool shall be separate from the play area.
Access to the water in above ground swimming pools
shall be prevented by locking and securing the ladder in
place or storing the ladder in a place inaccessible to the
children.
(9) ensure that animals that are potentially dangerous to
children as determined by the Division are safely
secured in areas not accessible to the children in care.
(10) safely store all combustible materials that may create a
fire hazard.
Authority G.S. 110-88; 91(3),(4),(5),(6).
10 NCAC 03U .1720 SAFETY AND SANITATION
REQUIREMENTS
(a) To assure the safety of children in care, the operator shall:
(1) separate firearms from ammunition and keep both in
locked storage.
(2) keep items used for starting fires, such as matches and
lighters, out of the children's reach.
(3) keep all medicines in locked storage.
(4) keep hazardous cleaning supplies and other items that
might be poisonous , e.g., toxic plants, out of reach or
in locked storage when children are in care .
(5) keep first-aid supplies in a place easily accessible to the
operator.
(6) ensure the equipment and toys are in good repair and
are developmentally appropriate for the children in
care.
(7) have a working telephone within the family child care
home. Telephone numbers for the fire department, law
enforcement office, emergency medical service, and
poison control center shall be posted near the telephone.
(8) have access to a means of transportation that is always
available for emergency situations.
(9) be able to recognize common symptoms of illnesses.
(b) No drug or medication shall be administered to any child
without specific instructions from the child’s parent, a physician,
or other authorized health professional. No drug or medication
shall be administered for non-medical reasons, such as to induce
sleep.
(1) Prescribed medicine shall be in its original container
bearing the pharmacist's label which lists the child's
name, date the prescription was filled, the physician's
name, the name of the medicine or the prescription
number, and directions for dosage, or be accompanied
by written instructions for dosage, bearing the child's
name, which are dated and signed by the prescribing
physician or other health professional. Prescribed
medicine shall be administered as authorized in writing
by the child' parent, only to the person for whom it is
prescribed.
(2) Over-the-counter medicines, such as cough syrup,
decongestant, acetaminophen, ibuprofen, topical
teething medication, topical antibiotic cream for
abrasions, or medication for intestinal disorders shall be
in its original container and shall be administered as
PROPOSED RULES
230 NORTH CAROLINA REGISTER August 1, 2000 15:3
authorized in writing by the child's parent, not to
exceed amounts and frequency of dosage specified in
the printed instructions accompanying the medicine.
The parent's authorization shall give the child's name,
the specific name of the over-the counter medicine,
dosage instructions, the parent's signature, and the date
signed. Over-the counter medicine may also be
administered in accordance with instructions from a
physician or other authorized health professional.
(3) When any questions arise concerning whether
medication provided by the parent should be
administered, that medication shall not be administered
without signed, written dosage instructions from a
licensed physician or authorized health professional.
(4) A written statement from a parent may give blanket
permission for up to six months to authorize
administration of medication for asthma and allergic
reactions. A written statement from a parent may give
blanket permission for up to one year to authorize
administration of topical ointments such as sunscreen
and over-the-counter diapering creams. The written
statement shall describe the specific conditions under
which the medication and creams are to be administered
and detailed instructions on how they are to be
administered. A written statement from a parent may
give blanket permission to administer a one-time,
weight appropriate dose of acetaminophen in cases
where the child has a fever and the parent can not be
reached.
(5) Any medication remaining after the course of treatment
is completed shall be returned to the child’s parents.
(6) Any time the operator administers medication other
than sunscreen and diapering creams to any child in
care, the child’s name, the date, time, amount and type
of medication given, and the signature of the operator
shall be recorded. This information shall be noted on a
form provided by the Division or on a separate form
developed by the operator which includes the required
information. This information shall be available for
review by a representative of the Division during the
time period the medication is being administered and
for at least six months after the medication is
administered.
(c) To assure the health of children through proper sanitation,
the operator shall:
(1) collect and submit samples of water from each well
used for the children's water supply for bacteriological
analysis to the local health department or a laboratory
certified to analyze drinking water for public water
supplies by the North Carolina Division of Laboratory
Services every two years. Results of the analysis shall
be on file in the home.
(2) have sanitary toilet, diaper changing and handwashing
facilities. Diaper changing areas shall be separate from
food preparation areas.
(3) use sanitary diapering procedures. Diapers shall be
changed whenever they become soiled or wet. The
operator shall:
(A) wash his or her hands before, as well as after,
diapering each child.
(B) wash the child’s hands after diapering the child.
(C) place soiled diapers in a covered, leak-proof
container which is emptied and cleaned daily.
(4) use sanitary procedures when preparing and serving
food. The operator shall:
(A) wash his or her hands before and after handling
food and feeding the children.
(B) wash the child' hands before and after the child is
fed.
(5) refrigerate all perishable food and beverages. The
refrigerator shall be in good repair and maintain a
temperature of 45 degrees Fahrenheit or below. A
refrigerator thermometer is required to monitor the
temperature.
(6) date and label all bottles for each individual child,
except when there is only one bottle-fed child in care.
(7) have a house that is free of rodents.
(8) screen all windows and doors used for ventilation.
(9) have all household pets vaccinated with up-to-date
vaccinations as required by North Carolina law and
local ordinances. Rabies vaccinations are required for
cats and dogs.
(10) store garbage in waterproof containers with tight fitting
covers.
(d) The operator shall not force children to use the toilet and the
operator shall consider the developmental readiness of each
individual child during toilet training.
Authority G.S. 110-88; 110-91(6).
10 NCAC 03U .1721 REQUIREMENTS FOR RECORDS
(a) The operator shall maintain the following health records for
each child who attends on a regular basis:
(1) a copy of the child's health assessment as required by
G.S. 110-91(1).
(2) a copy of the child's immunization record.
(3) a health and emergency information form provided by
the Division that is completed and signed by the child's
parents or guardian. The completed form shall be on
file the first day the child attends. An operator may use
another form other than the one provided by the
Division, as long as the form includes the following
information:
(A) the child's name, address, and date of birth;
(B) the names of individuals to whom the child may be
released;
(C) the general status of the child's health;
(D) any allergies or restrictions on the child's
participation in activities with specific instructions
from the child's parent or physician;
(E) the names and phone numbers of persons to be
contacted in an emergency situation;
(F) the name and phone number of the child's
physician and preferred hospital;
(G) notarized authorization for the operator to seek
emergency medical care in the parent's absence.
(4) when medication is administered, authorization for the
operator to administer the specific medication
according to the parent's or physician's instructions.
(b) The operator shall complete and maintain other records
which shall include:
PROPOSED RULES
15:3 NORTH CAROLINA REGISTER August 1, 2000 231
(1) documentation for the operator's procedures in
emergency situations, on a form which shall be
provided by the Division.
(2) documentation that monthly fire drills are practiced.
The documentation shall include the date each drill is
held, the time of day, the length of time taken to
evacuate the home, and the operator's signature.
(3) incident reports that are completed each time a child
receives medical treatment by a physician, nurse,
physician's assistant, nurse practitioner, community
clinic, or local health department, as a result of an
incident occurring while the child is in the family child
care home. Each incident shall be reported on a form
provided by the Division, signed by the operator and
the parent, and maintained in the child's file. A copy
shall be mailed to a representative of the Division
within seven calendar days after the incident occurs.
(4) an incident log which is filled out any time an incident
report is completed. This log shall be cumulative and
maintained in a separate file and shall be available for
review by a representative of the Division. This log
shall be completed on a form supplied by the Division.
(5) documentation that a monthly check for hazards on the
outdoor play area is completed. This form shall be
supplied by the Division and shall be maintained in the
family child care home for review by a representative
of the Division.
(6) Accurate daily attendance records for all children in
care, including the operator's own preschool children.
The attendance record shall indicate the date and time
of arrival and departure for each child.
(c) Written records shall be available for review, upon request,
by a representative of the Division and shall be maintained as
follows:
(1) records required in Paragraph(b)(2) – (6) of this Rule
shall be maintained for a minimum of three years, or
during the length of time the program has operated,
whichever is less;
(2) children's records shall be maintained while the child is
enrolled, and for a minimum of three years after the
child is no longer enrolled; and
(3) all other records shall be maintained for as long as the
license to which they pertain remains valid.
Authority G.S. 110-88; 110-91(1),(9).
10 NCAC 03U .1722 DISCIPLINE POLICY
(a) The operator shall provide a written copy of and explain the
operator's discipline practices to each child's parent, legal
guardian, or full-time custodian at the time of enrollment. If an
operator changes discipline practices, the child’s parent, legal
guardian, or full-time custodian must receive written notice of
the new policy 30 days prior to the implementation of the new
policy.
(b) No child shall be subjected to any form of corporal
punishment by the family child care home operator, substitute
caregiver, or any other person in the home, whether or not these
persons reside in the home.
(c) No child shall be handled roughly in any way, including
shaking, pushing, shoving, pinching, slapping, biting, kicking, or
spanking.
(d) No child shall ever be placed in a locked room, closet, or
box. box, or be left alone in a roomseparated fromstaff.
(e) No discipline shall ever be delegated to another child.
(f) Dis cipline shall in no way be related to food, rest or toileting.
(1) No food shall be withheld, or given, as a means of
discipline.
(2) No child shall ever be disciplined for lapses in toilet
training.
(3) No child shall ever be disciplined for not sleeping
during rest period.
(g) No child shall be disciplined by assigning chores that require
contact with or use of hazardous materials, such as cleaning
bathrooms or floors, or emptying diaper pails.
(h) Discipline shall be age and developmentally appropriate.
Authority G.S. 110-91(10).
SECTION .1800 – DISCIPLINE
10 NCAC 03U .1801 DISCIPLINE POLICY
(a) The person who conducts the enrollment conference shall
provide a written copy of and explain the center's discipline
practices to each child's parents, legal guardian, or full-time
custodian at the time of enrollment. Each parents, legal
guardian, or full-time custodian must sign a statement which
attests that a copy of the center's written discipline policies were
given to and discussed with him or her. That statement must
bear the child's name, the date of enrollment, and if different, the
date the parent, legal guardian, or full-time custodian signs the
statement. The signed, dated statement must be in the child's
record and must remain on file in the center as long as the child
is enrolled. If a center changes its discipline policy at any time,
it must give written notice of such a change to the child's parent,
guardian, or full-time custodian 30 days prior to the
implementation of the new policy and the parent, guardian, or
full-time custodian must sign a statement that attests that a copy
of the new policy was given to and discussed with him or her.
This statement shall be kept in the child's file.
(b) No child shall be subjected to any form of corporal
punishment by the owner, operator, director, or staff of any day
care facility. For purposes of this Rule, "staff" shall mean any
regular or substitute caregiver, any volunteer, and any auxiliary
personnel, such as cooks, secretaries, janitors, maids, vehicle
drivers, etc.
(1) No child shall be handled roughly in any way, including
shaking, pushing, shoving, pinching, slapping, biting,
kicking, or spanking.
(2) No child shall ever be placed in a locked room, closet, or
box. box, or be left alone in a room separated from
staff.
(3) No discipline shall ever be delegated to another child.
(4) Discipline shall in no way be related to food, rest or
toileting:
(A) No food shall be withheld, or given, as a means of
discipline.
(B) No child shall ever be disciplined for lapses in
toilet training.
(C) No child shall ever be disciplined for not sleeping
during rest period.
(5) No child shall be disciplined by assigning chores that
require contact with or use of hazardous materials, such
PROPOSED RULES
232 NORTH CAROLINA REGISTER August 1, 2000 15:3
as cleaning bathrooms or floors, or emptying diaper
pails.
(6) Discipline shall be age and developmentally appropriate.
Authority G.S. 110-91(10); 143B-168.3.
SECTION .1900 – SPECIAL PROCEDURES
CONCERNING ABUSE/NEGLECT IN CHILD CARE
10 NCAC 03U .1901 NOTIFICATION TO COUNTY
DEPARTMENT OF SOCIAL SERVICES
Any allegation of abuse or neglect received by the section
Division shall be referred to the county department of social
services within 24 hours of receipt of the complaint or on the
next working day. Even if the county department of social
services determines the allegation does not warrant investigation
according to G.S. 7A-544, 7B-302, the complaint shall be
investigated by the section. Division.
Authority G.S. 110-88(5); 143B-168.3.
10 NCAC 03U .1903 INVESTIGATION PROCEDURES
(a) The investigation shall include interviews with the
registrant, operator, staff, parents, or any other adult who has
information regarding the allegation. Reports from law
enforcement officers and other professionals, as well as
photographs and other investigative tools, may be used as
appropriate.
(b) The section's Division’s representative may interview the
child or children about the allegations of abuse or neglect only in
those cases where the county department of social services does
not conduct an investigation.
(c) The section Division shall share information related to
investigations with departments of social services, as
appropriate. However, any information subject to confidentiality
laws or regulations shall be handled so as to preserve the
confidential nature of the material.
(d) At any time during the investigation, the representative of
the section Division may conduct an evaluation for compliance
with all licensing applicable requirements.
(e) The section Division shall make a written report to the
licensee/registrant operator and the county department of social
services when the investigation is completed. The section
Division may also report to law enforcement officers and other
professionals that were involved in the investigation. This report
shall explain the section's Division's findings and what further
action will be taken, if any.
(f) The final written report of findings and further action shall
be made within 90 days of receipt of the allegation. If the
investigation is not complete at that time, an interim report
explaining the status of the investigation shall be made to the
operator 90 days after receipt of the allegation and every 30 days
thereafter until the final report is made. The county department
of social services shall be sent a copy of each interim report.
Authority G.S. 7B-301; 110-88(5); 110-105; 143B-168.3.
10 NCAC 03U .1904 ADMINISTRATIVE SANCTIO NS
(a) A special provisional license or registration permit may be
issued for a six-month period when the section Division
determines that abuse or neglect occurred in a child day care
center or home. The following provisions shall apply:
(1) the special provisional license or registration permit and
the reasons for its issuance shall be posted in a
prominent place in the center or home as soon as they
are received by the licensee or registrant. operator.
(2) the special provisional license or registration permit and
reasons for issuance shall remain posted for the entire
six months covered by the license or registration,
permit, and also during the time of any administrative
proceedings.
(3) no new children shall be enrolled in the center or home
until the section Division is satisfied that the abusive or
neglectful situation no longer exists and gives the
operator written permission to accept new children.
(4) a licensee or registrant an operator may obtain an
administrative hearing on the issuance of a special
provisional license or registration permit in accordance
with the provisions of G.S. 150B-23.
(b) A written warning specifying corrective action to be taken
by the operator of the day child care center or home may be
issued when the investigation is concluded and the section
Division determines that abuse or neglect occurred in a center or
home and the situation does not warrant issuance of a special
provisional license or registration. permit.
(c) A civil penalty, in accordance with the schedules listed in
Rules .1716 and .2206 of this Subchapter, may be levied against
the operator of a day child care home or center when the Section
Division determines that child abuse or neglect has occurred
while the child was in the care of the home or center. In
addition, any violation of the terms of a special provisional
license or registration permit may result in the assessment of a
civil penalty as provided in Rule .1716 and Rules .2202 through
.2206 of this Subchapter.
(d) Failure to implement the corrective action plan required by a
written warning pursuant to G.S. 110-88(6a) may result in either
the assessment of a civil penalty as provided in Section .2200 of
this Subchapter or the issuance of a special provisional license or
registration permit or may result in both actions being taken.
(e) The type of sanction imposed by the section Division shall
be determined by one or more of the following criteria:
(1) severity of the incident;
(2) probability of reoccurrence;
(3) prior incidents of abuse or neglect in the center or
home;
(4) history of compliance with child day care requirements;
(5) the section's Division's assessment of the operator's
response to the incident.
(f) Nothing in this Rule shall restrict the division Division from
using any other statutory or administrative penalty available
pursuant to G.S. 110-102.2 and Section .2000 of this Subchapter,
or the provisions in 150B-3(c) to summarily suspend a license or
registration permit if the health, safety or welfare of any child is
in jeopardy.
Authority G.S. 110-88(5); 110-88(6a); 110-102.2; 110-103.1;
143B-168.3; 150B-3; 150B-23;
SECTION .2000 – RULEMAKING AND CONTESTED
CASE PROCEDURES
PROPOSED RULES
15:3 NORTH CAROLINA REGISTER August 1, 2000 233
10 NCAC 03U .2006 ADMINISTRATIVE PENALTIES:
GENERAL PROVISIONS
(a) Pursuant to G.S. 110-102.2, the secretary or designee may
order one or more administrative penalties against any licensee
or registrant operator who violates any provision of Article 7 of
Chapter 110 of the General Statutes or of this Subchapter.
(b) Nothing in this Section shall restrict the division Division
from using any other statutory or civil penalty available. A civil
penalty in accordance with G.S. 110-103.1 and Section .2200 of
this Subchapter may be imposed in conjunction with any other
administrative activity.
(c) The issuance of an administrative penalty may be appealed
pursuant to G.S. 150B-23.
Authority G.S. 110-102.2; 110-103.1; 143B-168.3; 150B-23.
10 NCAC 03U .2007 WRITTEN WARNINGS
(a) A written warning and a request for compliance corrective
action plan may be issued in regard to any violation to allow the
licensee or registrant operator an opportunity to demonstrate
compliance with all requirements.
(b) The written warning and request for compliance corrective
action plan shall describe the reasons for its issuance including
identification of the specific section of the statutes or rules
violated. It shall also describe those actions necessary for the
licensee or registrant operator to be in full compliance with
requirements and shall specify a time period for compliance to be
achieved.
(c) If the licensee or registrant operator fails to achieve
compliance during the specified time period, the section Division
shall employ more restrictive action to achieve compliance or
shall revoke the license or registration. permit.
Authority G.S. 110-102.2; 143B-168.3.
10 NCAC 03U .2008 WRITTEN REPRIMANDS
(a) An official written reprimand may be issued to censure any
violation which the section Division determines to have been a
brief uncustomary event which is unlikely to recur in the
ordinary operation of the center or home.
(b) The reprimand shall describe the reasons for its issuance
including identification of the specific section of the statutes or
rules violated.
Authority G.S. 110-102.2; 143B-168.3.
10 NCAC 03U .2009 PROBATIONARY STATUS
(a) A license or registration permit may be place placed in
probationary status for a period of time not to exceed one year
when, in the section's Division's determination, violation of any
section of the statutes or rules has been willful, continual, or
hazardous to health or safety.
(b) The document ordering probation shall describe the reasons
for its issuance including identification of the specific section of
the statutes or rules violated and shall specify the period of
probation. It shall also specify terms of probation with which
the licensee or registrant operator must comply to retain the
license or registration. permit.
(c) The order of probation shall be posted in a prominent place
in the center or home during the probationary period. If
probation is stayed pending appeal, the probation order shall
remain posted in the center or home pending final action.
(d) Failure of the licensee or registrant operator to comply with
the terms of probation shall result in the commencement of
proceedings to suspend or revoke the license or registration.
permit.
Authority G.S. 110-102.2; 143B-168.3.
10 NCAC 03U .2010 SUSPENSION
(a) Suspension of a license or registration permit for a period of
time not to exceed 45 days may be ordered when, in the section's
Division's determination and with the concurrence of the
Division of Facility Services' Negative Action Review
Committee, Division's Review Panel, violation of any section of
the statutes or rules has been willful, continual, or hazardous to
health or safety, and/or the licensee or registration operator has
not made reasonable efforts to conform to standards.
(b) The licensee or registrant operatorshall be notified in advance
of the section's Division's determination to suspend the license
permit and the reasons for such action. The licensee or registrant
operator may request an agency review of the situation and shall
be given an opportunity to show compliance with all requirements
for retention of the license or registration. permit.
(c) The suspension order shall specify the period of suspension
and the reasons for its issuance. The licensee or registrant
operator shall surrender the license or registration permit to the
section Division of on the effective date of the suspension order
and shall refrain from operating a center or home during the
suspension period.
(d) If suspension is stayed pending appeal, the suspension order
shall be posted in a prominent place in the center or home pending
final action.
(e) Failure to comply with the suspension order shall result in
civil action in accordance with G.S. 110-103.1 and/or criminal
penalty in accordance with G.S. 110-103. The section Division
may also seek injunctive relief in accordance with G.S. 110-104.
Authority G.S. 110-102.2; 143B-168.3; 150B-3.
10 NCAC 03U .2011 REVOCATION
(a) Revocation of a license or registration permit may be
ordered when, in the section's Division's determination and with
the concurrence of the Division of Facility Services' Negative
Action Review Committee, Division's Review Panel, violation
of any section of the statutes or rules has been willful, continual,
or hazardous to health or safety, or the licensee or registrant
operator has not made reasonable efforts to conform to standards
or is unable to comply.
(b) The licensee or registrant operator shall be notified in
advance of the section's Division's determination to revoke the
license permit and the reasons for such action. The licensee or
registrant operator may request an agency review of the situation
and shall be given an opportunity to show compliance with all
requirements for retention of the license or registration. permit.
(c) The revocation order shall specify the reasons for its
issuance and the effective date of revocation and shall be posted
prominently in the center or home immediately upon receipt.
The licensee or registrant operator shall surrender the license or
registration permit on the effective date of the revocation order
and shall refrain from operating the center or home thereafter.
PROPOSED RULES
234 NORTH CAROLINA REGISTER August 1, 2000 15:3
(d) Failure to comply with the revocation order shall result in
civil action in accordance with G.S. 110-103.1 or a criminal
penalty in accordance with G.S. 110-103, or both. The Section
Division may also seek injunctive relief in accordance with G.S.
110-104.
(e) The operator may not apply for a new license or registration
for that facility or home for at least 90 days from the effective
date of the revocation order or, when administrative or judicial
review is requested, from the date the final agency decision or
judicial determination is rendered, whichever is later.
Authority G.S. 110-102.2; 143B-168.3; 150B-3.
10 NCAC 03U .2012 SUMMARY SUSPENSION
(a) Summary suspension of a license or registration permit may
be ordered in accordance with G.S. 150B-3(c) when, in the
section's Division's determination, emergency action is required
to protect the health, safety, or welfare of children in a licensed
day child care facility or registered day care home. regulated by
the Division.
(b) The suspension order shall specify the reasons for its issuance
including identification of the specific section of the statutes and
rules violated and the determination of the need for emergency
action. The order shall be effective on the date specified in the
order. The order shall be effective during proceedings to suspend
or revoke the license or registration. permit.
(c) The licensee or registrant operator shall surrender the license
or registration permit on the effective date of the order and shall
refrain from operating a center or home until final action is
determined.
(d) Failure to comply with the summary suspension order shall
result in civil action in accordance with G.S. 110-103.1, and/or
criminal penalty in accordance with G.S. 110-103. The section
Division may also seek injunctive relief in accordance with G.S.
110-104.
Authority G.S. 110-102.2; 143B-168.3; 150B-3.
SECTION .2100 – RELIGIOUS -SPONSORED CHILD
CARE CENTER REQUIREMENTS
10 NCAC 03U .2101 CENTERS OPERATING UNDER G.S.
110-106
(a) At least 30 days prior to the first day of operation of a new
church day religious-sponsored child care center, the prospective
operator shall send a "Letter of Intent to Operate" to the section
Division. That letter shall include the name, address, and
telephone number of the operator and the center, if known; the
proposed number and age range of children to be served; and the
center's scheduled opening date. A representative of the section
Division shall contact the prospective operator no later than
seven calendar days after the Letter of Intent is received to
advise the operator of the applicable requirements and
procedures.
(b) Church day Religious-sponsored child care centers shall
comply with all day child care center requirements in this
Subchapter except for the rules regarding age-appropriate
activities in 10 NCAC 3U .0505 - .0511(a) and .2508; and staff
qualifications and training requirements in Paragraphs (d)
through (f) of 10 NCAC 3U .0703, 10 NCAC 3U .0704, .0707 -
.0711, and Paragraphs (a) through (d) of 10 NCAC 3U .0714,
.0714. Paragraphs (b), (c) and (f) of Rule .2510, and Paragraphs
(b), (c) and (g) of Rule .2606 regarding staff qualifications and
training requirements. For staff working with school-aged
children only, Paragraphs (a)–(i), (l), and (o) of 10 NCAC 3U
.2510 shall not apply regarding staff requirements. Compliance
shall be documented at least annually using the same forms and
in the same manner as for all other centers.
(c) The section Division shall notify the operator in writing as to
whether the center complies or does not comply with the
requirements.
Authority G.S. 110-106; 143B-168.3.
SECTION .2200 – CIVIL PENALTIES
10 NCAC 03U .2201 SCOPE AND PURPOSE
Any operator/registrant operator who violates any provision of
G.S. 110, Article 7 or of this Subchapter Subchapter, or who
fails to take corrective action after being provided adequate
written notice by the section Division, shall be considered to be
in willful violation of the licensing law and a civil penalty may
be levied against the operator by the secretary or designee
pursuant to rules and schedules of penalties adopted by the
commission. Commission.
Authority G.S. 110-90(9); 110-103.1; 143B-168.3.
10 NCAC 03U .2206 SCHEDULE OF CIVIL PENALTIES
FOR CHILD CARE CENTERS
(a) The following penalties may be assessed against child day
care facilities centers as defined in G.S. 110-86(3).
(b) A civil penalty in an amount up to one thousand dollars
($1,000) may be imposed for the following violations:
(1) Non-compliance with the standards for:
(A) Staff-child ratios;
(B) Adequate supervision of children;
(C) Transportation of children; or
(D) Use of swimming pools and other swim areas.
(2) Disapproved fire safety, building or sanitation inspection
reports;
(3) Exceeding licensed capacity of facility, center, or use of
unauthorized space;
(4) Change of ownership or relocation of facility center
without prior notification to the section; Division;
(5) Substantiation that a child (or children) was abused or
neglected while in the care of the facility; center; or
(6) Willful, repeated pattern of non-compliance with any
requirement over extended period of time.
(c) A civil penalty in an amount up to five hundred dollars
($500.00) may be imposed for the following violations:
(1) Non-compliance with the standards for:
(A) Staff health requirements;
(B) Staff qualifications;
(C) Children's health requirements;
(D) Proper nutrition;
(E) Sanitation and personal hygiene practices;
(F) Discipline of children;
(G) Indoor or outdoor space; or
(H) Emergency medical plan;
(2) Failure to comply with a corrective action plan;
PROPOSED RULES
15:3 NORTH CAROLINA REGISTER August 1, 2000 235
(3) Denial of entry to an authorized representative of the
department or section. Division.
(d) A civil penalty in an amount up to two hundred and fifty
dollars ($250.00) may be imposed for the following violations:
(1) Non-compliance with the standards to provide:
(A) Age-appropriate activities, or
(B) Staff Development; development;
(2) Failure to post provisional license; permit;
(3) Failure to maintain accurate records.
(e) Violation of other standards may result in the assessment of a
penalty according to the effect or potential effect of the violation
on the safety and well-being of the child.
Authority G.S. 110-90(9); 110-103.1; 143B-168.3.
* * * * * * * * * * * * * * * * * * * * * *
Notice is hereby given in accordance with G.S. 150B-21.2 that
the DHHS-Division of Medical Assistance intends to amend the
rule cited as 10 NCAC 50B .0311. Notice of Rule-making
Proceedings was published in the Register on August 3, 1998.
Proposed Effective Date: March 1, 2001
Public Hearing:
Date: August 16, 2000
Time: 1:30 p.m.
Location: The Kirby Building, Room 132, 1985
Umstead Dr., Raleigh, NC 27603
Reason for Proposed Action: In part, the rule allows for
excluding from countable resources those resources that are
owned by a person who is incompetent and for whom there is no
individual with legal authority to access the resources on behalf
of the incompetent person. The amendment will clarify and
further define when an individual's resources are excluded
because he is alleged to be incompetent.
Comment Procedures: Written comments concerning this rule-making
action must be submitted by August 31, 2000, to Portia
W. Rochelle, Rule-making Coordinator, Division of Medical
Assistance, 1985 Umstead Dr., 2504 Mail Service Center,
Raleigh, NC 27699-2504.
Fiscal Impact
State
Local
Substantive (>$5,000,000)
None
CHAPTER 50 – MEDICAL ASSISTANCE
SUBCHAPTER 50B – ELIGIBILITY DETERMINATION
SECTION .0300 – CONDITIONS FOR ELIGIBILITY
10 NCAC 50B .0311 RESERVE
North Carolina has contracted with the Social Security
Administration under Section 1634 of the Social Security Act to
provide Medicaid to all SSI recipients. Resource eligibility for
individuals under any Aged, Blind, and Disabled coverage group
is determined based on standards and methodologies in Title
XVI of the Social Security Act except as specified in Items (4)
and (5) of this Rule. Applicants for and recipients of Medicaid
shall use their own resources to meet their needs for living costs
and medical care to the extent that such resources can be made
available. Certain resources shall be protected to meet specific
needs such as burial and transportation and a limited amount of
resources shall be protected for emergencies.
(1) The value of resources currently available to any budget
unit member shall be considered in determining
financial eligibility. A resource shall be considered
available when it is actually available and when the
budget unit member has a legal interest in the resource
and he, or someone acting in his behalf, can take any
necessary action to make it available.
(a) Resources shall be excluded in determining
financial eligibility when the budget unit member
having a legal interest in the resources is
incompetent unless:
(i) A guardian of the estate, a general guardian or
an interim guardian has been lawfully
appointed and is able to act on behalf of his
ward in North Carolina and in any state in
which such resources are located; or
(ii) A durable power of attorney, valid in North
Carolina and in any state in which such
resource is located, has been granted to a
person who is authorized and able to exercise
such power.
(b) When there is a guardian, an interim guardian, or a
person holding a valid, durable power of attorney
for a budget unit member, but such person is
unable, fails, or refuses to act promptly to make the
resources actually available to meet the needs of
the budget unit member, a referral shall be made to
the county department of social services for a
determination of whether the guardian or attorney
in fact is acting in the best interests of the member
and if not, the county department of social services
shall contact the clerk of court for intervention.
The resources shall be excluded in determining
financial eligibility pending action by the clerk of
court.
(c) When a Medicaid application is filed on behalf of
an individual who:
(i) is alleged to be mentally incompetent,
(ii) has or may have a legal interest in a resource
that affects the individual's eligibility, and
(iii) does not have a representative with legal
authority to use or dispose of the individual's
resources, the individual's representative or
family member shall be instructed to file
within 30 calendar days a judicial proceeding
under Chapter 35A of the North Carolina
General Statutes to declare the individual
incompetent and appoint a guardian. If the
representative or family member either fails to
file such a proceeding within 30 calendar days
or fails to timely conclude the proceeding, a
referral shall be made to the services unit of
the county department of social services for
PROPOSED RULES
236 NORTH CAROLINA REGISTER August 1, 2000 15:3
guardianship services. If the allegation of
incompetence is supported by a physician's
certification or other competent evidence from
sources including but not limited to
physicians, nurses, social workers,
psychologists, relatives, friends or others with
knowledge of the condition of the individual,
the resources shall be excluded except as
provided in Sub-items (1)(d) or (e) of this
Rule. If the individual is found by the court to
be incompetent, the resources shall be
excluded, beginning with the date that
competent evidence, as specified in Sub-item
(1)(f) of this Rule, indicates that he became
incompetent, except as provided for in Sub-items
(1)(d) or (1)(e) of this Rule.
(d) The budget unit member's resources shall be
counted in determining his eligibility for Medicaid
beginning the first day of the month following the
month a guardian of the estate, general guardian or
interim guardian is appointed, provided that after
the appointment, property which cannot be
disposed of or used except by order of the court
shall continue to be excluded until completion of
the applicable procedures for disposition specified
in G.S. 1 or G.S. 35A.
(e) When the court rules that the budget unit member
is competent or no ruling is made because of the
death or recovery of the member, his resources
shall be counted except for periods of time of at
least 30 consecutive calendar days for which it can
be established by competent evidence from sources
including but not limited to physicians, nurses,
social workers, psychologists, relatives, friends or
others with knowledge of the condition of the
individual, specified in Sub-item (1)(f) of this Rule,
that the member was in fact incompetent. Any
such showing of incompetence is subject to rebuttal
by competent evidence as specified herein and in
Sub-item (1)(c) (1)(f) of this Rule.
(f) For purposes of this Rule, competent evidence is
limited to the written statement of a physician or
psychiatrist with knowledge of the individual,
stating the basis of that knowledge, the beginning
date of incompetence, the reason the individual is
incompetent, and if no longer incompetent, when
the individual recovered competence.
(2) The limitation of resources held for reserve for the
budget unit shall be as follows:
(a) for Family and Children's related categorically and
medically needy cases, three thousand dollars
($3,000) per budget unit;
(b) for aged, blind, and disabled cases, two thousand
dollars ($2000) for a budget unit of one and three
thousand dollars ($3000) for a budget unit of two.
(3) If the value of countable resources of the budget unit
exceeds the reserve allowance for the unit, the case
shall be ineligible:
(a) for Family and Children's related cases and aged,
blind or disabled cases protected by grandfathered
provisions, and medically needy cases not
protected by grandfathered provision, eligibility
shall begin on the day countable resources are
reduced to allowable limits or excess income is
spent down, whichever occurs later;
(b) for categorically needy aged, blind or disabled
cases not protected by grandfathered provisions,
eligibility shall begin no earlier than the month
countable resources are reduced to allowable limits
as of the first moment of the first day of the month.
(4) Resources counted in the determination of financial
eligibility for categorically needy aged, blind and
disabled cases is based on resource standards and
methodologies in Title XVI of the Social Security Act
except for the following methodologies:
(a) The value of personal effects and household goods
are not counted.
(b) Value of tenancy in common interest in real
property is not counted.
(c) Value of life estate interest in real property is not
counted.
(5) Resources counted in the determination of financial
eligibility for medically needy aged, blind and disabled
cases is based on resource standards and methodologies
in Title XVI of the Social Security Act except for the
following methodologies:
(a) The value of personal effects and household goods
are not counted.
(b) Personal property is not a countable resource if it:
(i) is used in a trade or a business; or
(ii) is used to produce goods and services for
personal use; or
(iii) produces a net annual income.
(c) Real property not exempted under homesite rules is
not a countable resource if it:
(i) is used in a trade or business; or
(ii) is used to produce goods and services for
personal use; or
(iii) is non-business income producing property
that produces net annual income after
operational expenses of at least six percent of
equity value per methodologies under Title
XVI of the Social Security Act. For purposes
of this Sub-item equity of agricultural land,
horticultural land, and forestland is the present
use value of the land, as defined by G.S.
105-277.1A., et seq., less the amount of debts,
liens or other encumbrances.
(d) Value of tenancy in common interest in real
property is not counted.
(e) Value of life estate interest in real property is not
counted.
(f) Individuals with resources in excess of the resource
limit at the first moment of the month may become
eligible at the point that resources are reduced to
the allowable limit.
(6) Resources counted in the determination of financial
eligibility for categorically needy Family and Children's
related cases are:
(a) Cash on hand;
PROPOSED RULES
15:3 NORTH CAROLINA REGISTER August 1, 2000 237
(b) The balance of savings accounts, including savings
of a student saving his earnings for school
expenses;
(c) The balance of checking accounts less the current
monthly income which had been deposited to meet
the budget unit's monthly needs when reserve was
verified;
(d) The portion of lump sum payments remaining after
the month of receipt;
(e) Cash value of life insurance policies owned by the
budget unit;
(f) Stocks, bonds, mutual fund shares, certificates of
deposit and other liquid assets;
(g) Patient accounts in long term care facilities;
(h) Equity in non-essential personal property limited
to:
(i) Mobile homes not used as home,
(ii) Boats, boat trailers and boat motors,
(iii) Campers,
(iv) Farm and business equipment;
(v) Equity in vehicles in excess of one motor
vehicle per adult.
(7) Resources counted in the determination of financial
eligibility for medically needy Family and Children's
related cases are:
(a) Cash on hand;
(b) The balance of savings accounts, including savings
of a student saving his earnings for school
expenses;
(c) The balance of checking accounts less the current
monthly income which had been deposited to meet
the budget unit's monthly needs when reserve was
verified or lump sum income from
self-employment deposited to pay annual expenses;
(d) Cash value of life insurance policies when the total
face value of all policies that accrue cash value
exceeds one thousand five hundred dollars
($1,500);
(e) Stocks, bonds, mutual fund shares, certificates of
deposit and other liquid assets;
(f) Patient accounts in long term care facilities;
(g) Equity in non-essential, non-income producing
personal property limited to:
(i) Mobile home not used as home,
(ii) Boats, boat trailers and boat motors,
(iii) Campers,
(iv) Farm and business equipment,
(v) Equity in motor vehicles in excess of one
vehicle per adult if not income -producing.
Authority G.S. 108A-54; 108A-55; 108A-58; 42 U.S.C. 703, 704
1396; 42 C.F.R. 435.121; 42 C.F.R. 435.210; 42 C.F.R.
435.711; 42 C.F.R. 435.712; 42 C.F.R. 435.734; 42 C.F.R.
435.823; 42 C.F.R. 435.840; 42 C.F.R. 435.841; 42 C.F.R.
435-845; 42 C.F.R. 445.850; 42 C.F.R. 435.851; 45 C.F.R.
233.20; 45 C.F.R. 233.51.
TITLE 11 – DEPARTMENT OF INSURANCE
Notice is hereby given in accordance with G.S. 150B-21.2 that
the NC Department of Insurance intends to adopt the rules cited
as 11 NCAC 10 .0717-.0718 and repeal the rules cited as 11
NCAC 10 .0702, .0712. Notice of Rule-making Proceedings was
published in the Register on June 1, 2000.
Proposed Effective Date: April 1, 2001
Public Hearing:
Date: August 17, 2000
Time: 10:00 a.m.
Location: 3rd Floor Hearing Room, Dobbs Building,
430 N. Salisbury St., Raleigh, NC 27603
Reason for Proposed Action: Surplus lines statute changes
requires changes in rules.
Comment Procedures: Written comments should be sent to
Charles Swindell, Property & Casualty Division, NC
Department of Insurance, PO Box 26387, Raleigh, NC 27611.
Comments will be received through August 31, 2000.
Fiscal Impact
State
Local
Substantive (>$5,000,000)
None
CHAPTER 10 – PROPERTY AND CASUALTY DIVISION
SECTION .0700 – INSURANCE IN UNLICENSED
FOREIGN AND ALIEN COMPANIES
11 NCAC 10 .0702 PROCEDURE FOR PROCURING
INSURANCE IN UNLICENSED COMPANIES
Citizens desiring to procure policies of insurance on risks in this
state in unlicensed foreign and alien insurers shall submit to the
commissioner through surplus lines licensees, a Form F.
Authority G.S. 58-21-15.
11 NCAC 10 .0712 FORM E
Form E, "Tax Return on Insurance Placed in Surplus Lines
Insurers", is to be filed by surplus lines licensees with this
department on or before the end of each month following each
calendar quarter. A check covering the taxes due, but not
otherwise paid, should be remitted at the same time to cover all
business placed within the calendar quarter, and all cancellations
that have occurred for the business placed during this particular
reporting period. The information required shall include, but not
be limited to, the name of the insured, the name of the insurance
company, policy period, premiums and return premiums, and the
premium tax or credit.
Authority G.S. 58-9(1); 58-21-35.
11 NCAC 10 .0717 SURPLUS LICENSEE REPORT
In addition to the information specified in G.S. 58-21-35(a), the
report required by G.S. 58-21-35(a) shall contain the kind of
insurance placed by the licensee, the zip code of the location of
the risk, and the amount of any additional or return premium.
PROPOSED RULES
238 NORTH CAROLINA REGISTER August 1, 2000 15:3
Authority G.S. 58-2-40; 58-21-35.
11 NCAC 10 .0718 "FORM F" AFFIDAVIT
The affidavit required by G.S. 58-21-35(b) shall contain a signed
statement by the applicant that insurance is not available from
licensed companies, the name and address of the insured, a
description of the risk, the nature and amount of insurance, the
premiumcharged, policy period, policy number and, a statement
by the surplus lines licensee that the insurance is not available
fromlicensed companies.
Authority G.S. 58-2-40; 58-21-35.
* * * * * * * * * * * * * * * * * * * *
Notice is hereby given in accordance with G.S. 150B-21.2 that
the NC Department of Insurance intends to repeal the rules cited
as 11 NCAC 16 .0301-.0303. Notice of Rule-making
Proceedings was published in the Register on June 1, 2000.
Proposed Effective Date: June 1, 2000
Public Hearing:
Date: August 17, 2000
Time: 10:00 a.m.
Location: 3rd Floor Hearing Room, Dobbs Building,
430 N. Salisbury St., Raleigh, NC 27603
Reason for Proposed Action: Rules are obsolete.
Comment Procedures: Written comments should be sent to
Ellen K. Sprenkel, NC Department of Insurance, PO Box 26387,
Raleigh, NC 27611. Comments will be received through August
31, 2000.
Fiscal Impact
State
Local
Substantive (>$5,000,000)
None
CHAPTER 16 – ACTUARIAL SERVICES DIVISION
SECTION .0300 – SMALL EMPLOYER GROUP HEALTH
INSURANCE; FOR CALENDER YEAR 1994
ACTUARIAL CERTIFICATION
11 NCAC 16 .0301 DEFINITIONS AND SCOPE
(a) The definitions contained in G.S. 58-50-110 are incorporated
into this Section by reference.
(b) This Section applies to all health benefit plans and carriers
subject to the North Carolina Small Employer Group Health
Coverage Reform Act, G.S. 58-50-100 et seq.
Authority G.S. 58-2-40; 58-50-130(b).
11 NCAC 16 .0302 RESTRICTIONS ON PREMIUM
RATES
(a) Each class of business shall have its own rate manual. The
rate manual will be used to:
(1) Audit the actuarial certification with regards to the
relationship of one employer group to the others within
a class; and
(2) Determine compliance with the relationship of one
class to the other classes.
(b) The requirement in G.S. 58-50-130(b)(2) that within a class
the premium rates charged during a rating period to small
employers shall not vary from the index rate by more than 25
percent shall be met as follows:
(1) The carrier shall calculate for each class of business,
using the rate manual for that class, an index rate for
each plan of benefits and for each small employer
census within that class of business.
(2) For each small employer within a given class of
business, the carrier shall calculate the ratio of the
premium rate charged the small employer during the
rating period to the index rate for the census, plan of
benefits, and class of business of that small employer
calculated in Subparagraph (1) of this Paragraph.
(3) The ratio calculated in Subparagraph (2) of this
Paragraph shall be between .75 and 1.25, inclusive.
Other methods may be used if the results, using the method in
this Paragraph, meet the requirements of this Rule.
(c) The requirement in G.S. 58-50-130(b)(1) that the index rate
for a rating period for any class of business shall not exceed the
index rate for any other class of business by more than 12.5
percent shall be met as follows:
(1) The carrier shall define a representative census of its
business and a representative actuarially equivalent plan
of benefits.
(2) The carrier shall calculate an index rate based upon
Subparagraph (1) of this Paragraph for each class of
business.
(3) The carrier shall identify the class of business with the
lowest index rate.
(4) The ratio of the index rate calculated for each class of
business in Subparagraph (2) of this Paragraph to the
lowest index rate identified in Subparagraph (3) of this
Paragraph shall be between 1.00 and 1.125, inclusive.
Any change in the representative census or representative
actuarially equivalent plan of benefits used in Subparagraphs (1)
through (4) of this Paragraph shall be specifically documented
and the test must be performed on both the previous and new
census or actuarially equivalent plan of benefits at the time of
change; and the results of both tests shall be disclosed within the
annual actuarial certification filing. Other methods may be used
if the results, using the method in this Paragraph, meet the
requirements of this Rule.
(d) The acceptability of a proposed rate increase for a small
employer for health benefit plans that satisfy Paragraphs (b) and
(c) of this Rule, shall be determined as follows:
(1) Calculate a new business premium rate for the new
rating period using the rate manual, the actual census
and plan of benefits for the small employer at the
beginning of the new rating period.
(2) Calculate a now business premium rate for the prior
rating period using the rate manual, the actual census
and plan of benefits for the small employer at the
beginning of the prior rating period.
(3) Divide Subparagraph (1) of this Paragraph by
Subparagraph (2) of this Paragraph and multiply this
PROPOSED RULES
15:3 NORTH CAROLINA REGISTER August 1, 2000 239
quotient by the gross premium in effect at the beginning
of the prior rating period. This product is the maximum
renewal premium for the new rating period associated
with G.S. 58-50-130(b)(3)a and G.S. 58-50-130(b)(3)c.
(4) Subparagraph (3) of this Paragraph may be adjusted by
a percentage of the gross premium in force before
renewal. This percentage shall not exceed 15 percent
per year prorated for the months elapsed between the
previous and the new rating dates.
(5) Multiply Subparagraph (3) of this Paragraph by one
plus the percentage in Subparagraph (4) of this
Paragraph.
The maximum renewal gross premium is Subparagraph (5) of
this Paragraph if Paragraph (b) of this Rule is satisfied. If the
resulting maximum renewal gross premium calculated in
Subparagraph (5) of this Paragraph does not satisfy Paragraph
(b) of this Rule, then the maximum renewal gross premium shall
be adjusted until Paragraph (b) of this Rule is satisfied. Other
methods may be used if the results, using the method in this
Paragraph, meet the requirements of this Rule.
(e) The acceptability of a proposed rate increase for a small
employer for health benefit plans that exceed the limits in
Paragraphs (b) and (c) of this Rule and were issued before
January 1, 1992, shall be determined as follows:
(1) Calculate a new business premium rate for the new
rating period using the rate manual, the actual census
and plan of benefits for the small employer at the
beginning of the new rating period.
(2) Calculate a new business premium rate for the prior
rating period using the rate manual, the actual census
and plan of benefits for the small employer at the
beginning of the prior rating period.
(3) Divide Subparagraph (1) of this Paragraph by
Subparagraph (2) of this Paragraph and multiply this
quotient by the gross premium in effect at the beginning
of the prior rating period. This product is the maximum
renewal premium for the new rating period associated
with G.S. 58-50-130(b)(7)a and G.S. 58-50-130(b)(7)b.
The maximum renewal gross premium in Subparagraph (3) of
this Paragraph is not subject to Paragraphs (b) and (c) of this
Rule during a three-year transition period ending January 1,
1995. After January 1, 1995, the acceptability of a proposed rate
increase for a small employer shall be based only on Paragraph
(d) of this Rule. Other methods may be used if the results, using
the method in this Paragraph, meet the requirements of this Rule.
Authority G.S. 58-2-40; 58-50-130(b).
11 NCAC 16 .0303 ANNUAL FILING
Each carrier shall make a filing with the Department as of March
15 of each year for each class of insurance administered under
this Rule. The filing shall include:
(1) An actuarial certification stating that:
(a) The carrier is in compliance with all provisions of
this Section; and
(b) The rating methods of the carrier are actuarially
sound.
(2) A list and description of each class of business in the
State. The description shall include:
(a) The distinct grouping as described in G.S. 58-50-
113;
(b) Whether or not the distinct grouping is open to new
business; and
(c) If the number of distinct groupings in a particular
distinct grouping exceeds three, the initial filing
must include a request for approval of the
additional classes.
(3) A written description of the definition of the
representative census used in 11 NCAC 16 .0302(c) and
a statement that the representative census has either
changed or not changed during the period between
annual filings.
(4) A written description of the definition of the
representative actuarially equivalent plan of benefits
used in 11 NCAC 16 .0302(c) and a statement that the
representative actuarially equivalent plan of benefits
has either changed or not changed during the period
between annual filings.
(5) A statement that the test outlined in 11 NCAC 16
.0302(c) has been performed on both the previous and
new definitions of the representative census and the
actuarially equivalent plan of benefits, if such
definitions have changed.
(6) A written description of the results of the test
performed in Paragraph (5) of this Rule and an
explanation addressing the reason for changing either
the definition of the representative census or the
representative actuarially equivalent plan of benefits, or
both.
An acceptable format for the actuarial certification is on file at
the Department. Copies may be obtained from the Department
at the cost for copies stated in G.S. 58-6-5(3).
Authority G.S. 58-2-40; 58-50-130.
TITLE 12 – DEPARTMENT OF JUSTICE
Notice is hereby given in accordance with G.S. 150B-21.2 that
the NC Alarm Systems Licensing Board intends to amend the
rules cited as 12 NCAC 11 .0501-.0506. Notice of Rule-making
Proceedings was published in the Register on February 1, 2000.
Proposed Effective Date: February 26, 2001
Public Hearing:
Date: August 18, 2000
Time: 11:30 a.m.
Location: SBI Complex, SBI Conference Room, 3320
Old Garner Rd., Raleigh, NC 27626
Reason for Proposed Action: The proposed amendments make
several technical corrections to the existing rules. Further, the
Board wishes to grant credit for licensee and registrants who
attend a regularly scheduled meeting of the Board.
Comment Procedures: Written comments will be accepted by
the Board, with the deadline for submission of all written
comments being 15 days after the date of the public hearing.
Written comments may be submitted to Administrator W. Wayne
Woodard, ASLB, 3320 Old Garner Rd., Raleigh, NC 27626.
PROPOSED RULES
240 NORTH CAROLINA REGISTER August 1, 2000 15:3
Fiscal Impact
State
Local
Substantive (>$5,000,000)
None
CHAPTER 11 – NORTH CAROLINA ALARM SYSTEMS
LICENSING BOARD
SECTION .0500 – CONTINUING EDUCATION FOR
LICENSEES
12 NCAC 11 .0501 DEFINITIONS
In addition to the definitions set forth in 12 NCAC 11 .0103, the
following definitions shall apply to this Section:
(1) "continuing licensee education" or "CLE" "continuing
education" or "CE" refers to any educational activity
approved by the Board to be a continuing education
activity.
(2) "credit hour" means sixty minutes of continuing
education instruction.
(3) "year" refers to the calendar year after the issuance of a
new or renewal license.
(4) "licensee" shall refer to an individual who holds an
alarm systems business license issued by the Board.
(5) "registrant" shall refer to an individual who holds an
alarm systems business registration permit issued by the
Board. Only registrants who engage in installation,
service, sales, or monitoring of alarm systems shall be
required to complete the continuing education
requirements.
Authority G.S. 74D-2; 74D-5.
12 NCAC 11 .0502 REQUIRED CONTINUING
EDUCATION HOURS
Each licensee shall complete at least six credit hours of
continuing licensee education training during each renewal
period. Each registrant shall complete at least three credit hours
of continuing licensee education training during each renewal
period. Credit shall only be given for classes that have been pre-approved
by the Board. Continuing education hours used to
satisfy continuing education training for other state required
licenses, such as an electrical license, shall not be used to satisfy
the continuing education requirements set forth in this Section.
A licensee or registrant who attends a complete meeting of a
regularly scheduled meeting of the Alarm Systems Licensing
Board shall receive three credit hours for each meeting that the
licensee or registrant attends. Said credit shall be applied
retroactively for those that signed the attendance sheet and
attended a regularly scheduled Board meeting prior to the
adoption of this rule.
Authority G.S. 74D-2; 74D-5.
12 NCAC 11 .0503 ACCREDITATION STANDARDS
(a) CLE CE courses may obtain the sanction of the Alarm
Systems Licensing Board by submitting the following
information to the Board for consideration:
(1) the nature and purpose of the course;
(2) the course objectives or goals;
(3) the outline of the course, including the number of
training hours for each segment; and
(4) the identity of each instructor.
(b) To determine if a course will receive sanctioning from the
Alarm Systems Licensing Board, the Board shall complete the
following review:
(1) The matter will be referred to the Education and
Training Committee for the appointment of a sub-committee
that shall review the course under
consideration. The sub-committee shall consist of at
least one member of the Education and Training
Committee, one member of the Board's staff, and one
industry licensee who has no vested interest in the
course. Other members of the sub-committee may be
appointed at the discretion of the Education and
Training Committee Chairman.
(2) The sub-committee shall review the course to determine
if the course is pertinent to the industry, and if the
course meets its stated objectives.
(3) When the sub-committee completes its review, it shall
report to the Education and Training Committee. The
Education and Training Committee shall review the
course to determine if the course is pertinent to the
industry, and if the course meets its stated objective.
The Education and Training Committee shall then
report the findings with a recommendation of
acceptance or denial to the Alarm Systems Licensing
Board.
(c) Upon receipt of the Education and Training Committee
report, the Alarm Systems Licensing Board will determine by
majority vote if the course will be sanctioned for continuing
licensee education credits. In making its determination, the
Board shall review the course to determine if the course is
pertinent to the industry, and if the course meets its stated
objective.
(d) Each approved course shall remain a validly approved
course for four years fromthe date of approval by the Board.
Authority G.S. 74D-2; 74D-5.
12 NCAC 11 .0504 NON-RESIDENT LICENSEES AND
CONTINUING EDUCATION CREDITS
A non-resident licensee shall obtain the required continuing
licensee education credits as set forth in 12 NCAC 11 .0503. If a
non-resident licensee resides in a state that requires continuing
education for an alarm systems business license, then the
continuing education courses to be offered in the state of
residence may be considered by the North Carolina Alarm
Systems Licensing Board for sanctioning in North Carolina on
an individual course basis. In determining if the course is to be
sanctioned, the Board shall review the course to determine if the
course is pertinent to the industry, and if the course meets its
stated objective.
Authority G.S. 74D-2; 74D-5.
12 NCAC 11 .0505 RECORDING AND REPORTING
CONTINUING EDUCATION CREDITS
Each licensee shall be responsible for recording and reporting
continuing licensee education credits to the Board at the time of
license renewal, and for each course taken such report shall
PROPOSED RULES
15:3 NORTH CAROLINA REGISTER August 1, 2000 241
include a certificate of course completion that is signed by at
least one course instructor, indicates the name of the licensee
that completed the course, indicates the date of course
completion, and indicates the number of hours taken by the
licensee. Credit will not be given if a certificate of course
completion is dated more than two years from the license
renewal date. Each course instructor shall be required to
maintain a course roster. Said roster shall be delivered to the
Board's office within two weeks of the completion date of the
course.
Authority G.S. 74D-2; 74D-5.
12 NCAC 11 .0506 NON-COMPLIANCE
If a licensee or registrant fails to comply with this Section of the
rules, his license or registration permit shall not be renewed.
Authority G.S. 74D-2; 74D-5.
TITLE 15A – DEPARTMENT OF ENVIRONMENT AND
NATURAL RESOURCES
Notice is hereby given in accordance with G.S. 150B-21.2 that
the Environmental Management Commission intends to adopt
the rules cited as 15A NCAC 02D .1806-.1807; 02Q .0316-
.0317; amend the rules cited as 15A NCAC 02D .0501, .0521,
.0536, .0539, .1103-.1104; 02Q .0109, .0203, .0401, .0608,
.0703, .0711, .0803, .0805-.0808; and repeal the rule cited as
15A NCAC 02D .0522. Notice of Rule-making Proceedings was
published in the Register on December 15, 1995, August 15,
1998, February 15, 1999, June 15, 1999, August 16, 1999,
September 8, 1999, and May 1, 2000.
Proposed Effective Date: April 1, 2001
Public Hearing:
Date: August 16, 2000
Time: 7:00 p.m.
Location: Division of Air Quality Training Room,
Parker-Lincoln Building, 2728 Capital Blvd., Raleigh,
NC 27604
Reason for Proposed Action: To substitute the Title V
permitting procedures for State Implementation Plan (SIP)
procedures for permit conditions that are part of the SIP; to
clarify that the visible emissions rule does not apply to engine
maintenance where controls are infeasible; to change schedules
for submitting permit applications; to facilitate making minor
changes to non-Title V permits; to clarify that permits can be
used to avoid rules containing applicability thresholds; to make
reporting dates for all exclusionary facilities the same; to extend
nonattainment area Title V fees to certain Title V facilities
outside nonattainment areas; to make the acid rain applicability
the same as the federal acid rain applicability; to revise the Title
V compliance certification requirements; to adopt a new general
odor rule to replace the current general odor rule; to receive
comment on amendment to change the annual opacity for Duke
Power Company Riverbend Steam Station; to consolidate the
acceptable ambient levels for chromium(VI) compounds; and to
define soluble nickel.
Comment Procedures: All persons interested in these matters
are invited to attend the public hearings. Any person desiring to
comment is requested to submit a written statement for inclusion
in the record of proceedings at the public hearing. The hearing
officer may limit oral presentation lengths if many people want
to speak. The hearing record will remain open until August 31,
2000 to receive additional written statements. To be included,
the statement must be received by the Division by August 31,
2000. Comments should be sent to and additional information
concerning the hearings or the proposals may be obtained by
contacting: Mr. Thomas C. Allen, Division of Air Quality, 1641
Mail Service Center, Raleigh, NC 27699-1641, phone (919) 733-
1489, fax (919)715-7476, or email Thom.Allen@ncmail.net.
Fiscal Impact
State
Local
Substantive (>$5,000,000)
None
CHAPTER 2 – ENVIRONMENTAL MANAGEMENT
SUBCHAPTER 2B – SURFACE WATER AND WETLAND
STANDARDS
SECTION .0500 – SURFACE WATER MONITORING:
REPORTING
15A NCAC 02D .0501 COMPLIANCE WITH EMISSION
CONTROL STANDARDS
(a) Purpose and Scope. The purpose of this Rule is to assure
orderly compliance with emission control standards found in this
Section. This Rule shall apply to all air pollution sources, both
combustion and non-combustion.
(b) In determining compliance with emission control standards,
means shall be provided by the owner to allow periodic
sampling and measuring of emission rates, including necessary
ports, scaffolding and power to operate sampling equipment; and
upon the request of the Division of Environmental Management,
data on rates of emissions shall be supplied by the owner.
(c) Testing to determine compliance shall be in accordance with
the following procedures, except as may be otherwise required
in Rules .0524, .0606, .1110, or .1111 of this Subchapter.
(1) Method 1 of Appendix A of 40 CFR Part 60 shall be
used to select a suitable site and the appropriate number
of test points for the following situations:
(A) particulate testing,
(B) velocity and volume flow rate measurements,
(C) testing for acid mist or other pollutants which
occur in liquid droplet form,
(D) any sampling for which velocity and volume flow
rate measurements are necessary for computing
final test results, and
(E) any sampling which involves a sampling method
which specifies isokinetic sampling. (Isokinetic
sampling is sampling in which the velocity of the
gas at the point of entry into the sampling nozzle is
equal to the velocity adjacent to the nozzle.)
Method 1 shall be applied as written with the
following clarifications: Testing installations
PROPOSED RULES
242 NORTH CAROLINA REGISTER August 1, 2000 15:3
with multiple breechings may be accomplished
by testing the discharge stack(s) to which the
multiple breechings exhaust. If the multiple
breechings are individually tested, then
Method 1 shall be applied to each breeching
individually. The Director or his designee may
approve a test when test ports in a duct are
located less than two diameters downstream
from any disturbance (fan, elbow, change in
diameter, or any other physical feature that
may disturb the gas flow) or one-half diameter
upstream from any disturbance, if the tester
demonstrates to the Director, or his designee,
that locating test ports beyond these distances
are impossible because the duct cannot be
modified to meet the specifications of Method
1 or testing at an alternative location is not
feasible.
(2) Method 2 of Appendix A of 40 CFR Part 60 shall be
applied as written and used concurrently with any test
method in which velocity and volume flow rate
measurements are required.
(3) Sampling procedures for determining compliance with
particulate emission control standards shall be in
accordance with Method 5 of Appendix A of 40 CFR
Part 60. Method 17 of Appendix A of 40 CFR Part 60
may be used instead of Method 5 provided that the
stack gas temperature does not exceed 320E F. The
minimum time per test point for particulate testing shall
be two minutes and the minimum time per test run shall
be one hour. The sample gas drawn during each test run
shall be at l

NORTH CAROLINA
REGISTER
Volume 15, Issue 3
Pages 221 - 348
August 1, 2000
This issue contains documents officially filed
through July 11, 2000.
Office of Administrative Hearings
Rules Division
424 North Blount Street (27601)
6714 Mail Service Center
Raleigh, NC 27699-6714
(919) 733-2678
FAX (919) 733-3462
Julian Mann III, Director
Camille Winston, Deputy Director
Molly Masich, Director of APA Services
Ruby Creech, Publications Coordinator
Linda Dupree, Editorial Assistant
Dana Sholes, Editorial Assistant
IN THIS ISSUE
I. IN ADDITION
ENR –Environmental Management.........................................221
II. RULE-MAKING PROCEEDINGS
Environment and Natural Resources
Coastal Resources Commission ..........................................222 - 223
Health Services, Commission for........................................223
Justice
Alarm Systems Licesning Board.........................................222
Private Protective Services.................................................222
III. PROPOSED RULES
Environment and Natural Resources
Environmental Management...............................................241 - 266
Health and Human Services
Child Care Commission.....................................................224 - 235
Medical Assistance............................................................235 - 237
Insurance
Actuarial Services Division................................................238 - 239
Property and Casualty Division...........................................237 - 238
Justice
Alarm Systems Licensing Board.........................................239 - 241
IV. TEMPORARY RULES
Health and Human Services
Social Services..................................................................267
Licensing Boards
Electrical Contractors, Board of Examiners..........................267 - 269
V. APPROVED RULES...........................................................270 - 333
Commerce
Departmental Rules
Office of Information Technology Services
Environment and Natural Resources
Environmental Management
Health Services
Health and Human Services
Health Services
Social Services
Insurance
Financial Evaluation Division
Life and Health Division
Property and Casualty Division
Special Services Division
Justice
Private Protective Services
Licensing Boards
Architecture
Geologist s
Nursing, Board of
Nursing Home Administrators
Plumbing, Heating and Fire Sprinkler Contractors
Real Estate Commission
Refrigeration Examiners
Substance Abuse Professionals, Certification Board for
Public Education
Elementary and Secondary Education
Revenue
Ad Valorem Tax Division
Corporate Income & Franchise Tax Division
Departmental Rules
Individual Income: Inheritance & Gift Tax Division
License and Excise Tax Division
Sales and Use Tax
Motor Fuels Tax Division
Transportation
Highways, Division of
Motor Vehicle, Division of
VI. RULES REVIEW COMMISSION.......................................334 - 336
VII. CONTESTED CASE DECISIONS
Index to ALJ Decisions..........................................................337 - 339
Text of Selected Decisions
99 ABC 1341....................................................................340 - 341
99 EHR 1438....................................................................342
99 EHR 1538....................................................................343 - 348
VIII. CUMULATIVE INDEX ......................................................1 - 62
North Carolina Register is published semi-monthly for $195 per year by the Office of Administrative Hearings, 424 North Blount Street, Raleigh, NC
27601. (ISSN 15200604) to mail at Periodicals Rates is paid at Raleigh, NC. POSTMASTER: Send Address changes to the North Carolina
Register, PO Drawer 27447, Raleigh, NC 27611-7447.
NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM
The North Carolina Administrative Code (NCAC) has four major subdivisions of rules. Two of these, titles and
chapters, are mandatory. The major subdivision of the NCAC is the title. Each major department in the North
Carolina executive branch of government has been assigned a title number. Titles are further broken down into
chapters which shall be numerical in order. The other two, subchapters and sections are optional subdivisions to
be used by agencies when appropriate.
TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE
TITLE DEPARTMENT LICENSING BOARDS CHAPTER
1
2
3
4
5
6
7
8
9
10
11
12
13
14A
15A
16
17
18
19A
20
*21
22
23
24
25
26
27
Administration
Agriculture
Auditor
Commerce
Correction
Council of State
Cultural Resources
Elections
Governor
Health and Human Services
Insurance
Justice
Labor
Crime Control & Public Safety
Environment and Natural Resources
Public Education
Revenue
Secretary of State
Transportation
Treasurer
Occupational Licensing Boards
Administrative Procedures (Repealed)
Community Colleges
Independent Agencies
State Personnel
Administrative Hearings
NC State Bar
Acupuncture
Architecture
Athletic Trainer Examiners
Auctioneers
Barber Examiners
Certified Public Accountant Examiners
Chiropractic Examiners
Employee Assistance Professionals
General Contractors
Cosmetic Art Examiners
Dental Examiners
Dietetics/Nutrition
Electrical Contractors
Electrolysis
Foresters
Geologists
Hearing Aid Dealers and Fitters
Landscape Architects
Landscape Contractors
Massage & Bodywork Therapy
Marital and Family Therapy
Medical Examiners
Midwifery Joint Committee
Mortuary Science
Nursing
Nursing Home Administrators
Occupational Therapists
Opticians
Optometry
Osteopathic Examination & Reg. (Repealed)
Pastoral Counselors, Fee-Based Practicing
Pharmacy
Physical Therapy Examiners
Plumbing, Heating & Fire Sprinkler Contractors
Podiatry Examiners
Professional Counselors
Psychology Board
Professional Engineers & Land Surveyors
Real Estate Appraisal Board
Real Estate Commission
Refrigeration Examiners
Sanitarian Examiners
Social Work Certification
Soil Scientists
Speech & Language Pathologists & Audiologists
Substance Abuse Professionals
Therapeutic Recreation Certification
Veterinary Medical Board
1
2
3
4
6
8
10
11
12
14
16
17
18
19
20
21
22
26
28
30
31
32
33
34
36
37
38
40
42
44
45
46
48
50
52
53
54
56
57
58
60
62
63
69
64
68
65
66
Note: Title 21 contains the chapters of the various occupational licensing boards.
NORTH CAROLINA REGISTER
Publication Schedule For January 2000 - December 2000
FILING DEADLINES
NOTICE OF
RULE-MAKING
PROCEEDIN
GS
NOTICE OF TEXT
TEMPORARY RULE
non-substantial economic impact substantial economic impact
volume
and issue
number issue date
last day for
filing
earliest register
issue for
publication of
text
earliest
date for
public
hearing
end of
required
comment
period
deadline to
submit to
RRC for
review at
next
meeting
first
legislative
day of the
next
regular
session
end of
required
comment
period
deadline to
submit to
RRC for
review at
next
meeting
first legislative
day of the
next regular
session
270th day from issue
date
14:13 01/04/00 12/09/99 03/15/00 01/19/00 02/03/00 02/21/00 05/09/00 03/06/00 03/20/00 05/09/00 09/30/00
14:14 01/14/00 12/21/99 03/15/00 01/31/00 02/14/00 02/21/00 05/09/00 03/14/00 03/20/00 05/09/00 10/10/00
14:15 02/01/00 01/10/00 04/03/00 02/16/00 03/02/00 03/20/00 05/09/00 04/03/00 04/20/00 01/26/01 10/28/00
14:16 02/15/00 01/25/00 04/17/00 03/01/00 03/16/00 03/20/00 05/09/00 04/17/00 04/20/00 01/26/01 11/11/00
14:17 03/01/00 02/09/00 05/01/00 03/16/00 03/31/00 04/20/00 01/26/01 05/01/00 05/22/00 01/26/01 11/26/00
14:18 03/15/00 02/23/00 05/15/00 03/30/00 04/14/00 04/20/00 01/26/01 05/15/00 05/22/00 01/26/01 12/10/00
14:19 04/03/00 03/13/00 06/15/00 04/18/00 05/03/00 05/22/00 01/26/01 06/02/00 06/20/00 01/26/01 12/29/00
14:20 04/17/00 03/27/00 07/03/00 05/02/00 05/17/00 05/22/00 01/26/01 06/16/00 06/20/00 01/26/01 01/12/01
14:21 05/01/00 04/07/00 07/03/00 05/16/00 05/31/00 06/20/00 01/26/01 06/30/00 07/20/00 01/26/01 01/26/01
14:22 05/15/00 04/24/00 07/17/00 05/30/00 06/14/00 06/20/00 01/26/01 07/14/00 07/20/00 01/26/01 02/09/01
14:23 06/01/00 05/10/00 08/01/00 06/16/00 07/03/00 07/20/00 01/26/01 07/31/00 08/21/00 01/26/01 02/26/01
14:24 06/15/00 05/24/00 08/15/00 06/30/00 07/17/00 07/20/00 01/26/01 08/14/00 08/21/00 01/26/01 03/12/01
15:01 07/03/00 06/12/00 09/01/00 07/18/00 08/02/00 08/21/00 01/26/01 09/01/00 09/20/00 01/26/01 03/30/01
15:02 07/17/00 06/23/00 09/15/00 08/01/00 08/16/00 08/21/00 01/26/01 09/15/00 09/20/00 01/26/01 04/13/01
15:03 08/01/00 07/11/00 10/02/00 08/16/00 08/31/00 09/20/00 01/26/01 10/02/00 10/20/00 01/26/01 04/28/01
15:04 08/15/00 07/25/00 10/16/00 08/30/00 09/14/00 09/20/00 01/26/01 10/16/00 10/20/00 01/26/01 05/12/01
15:05 09/01/00 08/11/00 11/01/00 09/18/00 10/02/00 10/20/00 01/26/01 10/31/00 11/20/00 01/26/01 05/29/01
15:06 09/15/00 08/24/00 11/15/00 10/02/00 10/16/00 10/20/00 01/26/01 11/14/00 11/20/00 01/26/01 06/12/01
15:07 10/02/00 09/11/00 12/01/00 10/17/00 11/01/00 11/20/00 01/26/01 12/01/00 12/20/00 05/2002 06/29/01
15:08 10/16/00 09/25/00 12/15/00 10/31/00 11/15/00 11/20/00 01/26/01 12/15/00 12/20/00 05/2002 07/13/01
15:09 11/01/00 10/11/00 01/02/01 11/16/00 12/01/00 12/20/00 05/2002 01/02/01 01/22/01 05/2002 07/29/01
15:10 11/15/00 10/24/00 01/16/01 11/30/00 12/15/00 12/20/00 05/2002 01/16/01 01/22/01 05/2002 08/12/01
15:11 12/01/00 11/07/00 02/01/01 12/18/00 01/02/01 01/22/01 05/2002 01/30/01 02/20/01 05/2002 08/28/01
15:12 12/15/00 11/22/00 02/15/01 01/02/01 01/16/01 01/22/01 05/2002 02/13/01 02/20/01 05/2002 09/11/01
EXPLANATION OF THE PUBLICATION SCHEDULE
This Publication Schedule is prepared by the Office of Administrative Hearings as a public service and the computation of time periods are not to be deemed binding or controlling. Time is
computed according to 26 NCAC 2C .0302 and the Rules of Civil Procedure, Rule 6.
GENERAL
The North Carolina Register shall be
published twice a month and contains the
following information submitted for
publication by a state agency:
(1) temporary rules;
(2) notices of rule-making proceed-ings;
(3) text of proposed rules;
(4) text of permanent rules approved by
the Rules Review Commission;
(5) notices of receipt of a petition for
municipal incorporation, as required
by G.S. 120-165;
(6) Executive Orders of the Governor;
(7) final decision letters from the U.S.
Attorney General concerning
changes in laws affecting voting in a
jurisdiction subject of Section 5 of
the Voting Rights Act of 1965, as
required by G.S. 120-30.9H;
(8) orders of the Tax Review Board
issued under G.S. 105-241.2; and
(9) other information the Codifier of
Rules determines to be helpful to the
public.
COMPUTING TIME: In computing time in
the schedule, the day of publication of the
North Carolina Register is not included.
The last day of the period so computed is
included, unless it is a Saturday, Sunday, or
State holiday, in which event the period
runs until the preceding day which is not a
Saturday, Sunday, or State holiday.
FILING DEADLINES
ISSUE DATE: The Register is published on
the first and fifteen of each month if the
first or fifteenth of the month is not a
Saturday, Sunday, or State holiday for
employees mandated by the State
Personnel Commission. If the first or
fifteenth of any month is a Saturday,
Sunday, or a holiday for State employees,
the North Carolina Register issue for that
day will be published on the day of that
month closest to (either before or after) the
first or fifteenth respectively that is not a
Saturday, Sunday, or holiday for State
employees.
LAST DAY FOR FILING: The last day for
filing for any issue is 15 days before the
issue date excluding Saturdays, Sundays,
and holidays for State employees.
NOTICE OF RULE-MAKING PROCEEDINGS
END OF COMMENT PERIOD TO A NOTICE OF
RULE-MAKING PROCEEDINGS: This date is 60
days from the issue date. An agency shall
accept comments on the notice of rule-making
proceeding until the text of the proposed rules
is published, and the text of the proposed rule
shall not be published until at least 60 days
after the notice of rule-making proceedings
was published.
EARLIEST REGISTER ISSUE FOR PUBLICATION
OF TEXT: The date of the next issue following
the end of the comment period.
NOTICE OF TEXT
EARLIEST DATE FOR PUBLIC HEARING:
The hearing date shall be at least 15 days
after the date a notice of the hearing is
published.
END OF REQUIRED COMMENT PERIOD
(1) RULE WITH NON-SUBSTANTIAL
ECONOMIC IMPACT: An agency shall
accept comments on the text of a proposed
rule for at least 30 days after the text is
published or until the date of any public
hearings held on the proposed rule,
whichever is longer.
(2) RULE WITH SUBSTANTIAL
ECONOMIC IMPACT: An agency shall
accept comments on the text of a proposed
rule published in the Register and that has
a substantial economic impact requiring a
fiscal note under G.S. 150B-21.4(b1) for
at least 60 days after publication or until
the date of any public hearing held on the
rule, whichever is longer.
DEADLINE TO SUBMIT TO THE RULES
REVIEW COMMISSION: The Commission
shall review a rule submitted to it on or
before the twentieth of a month by the last
day of the next month.
FIRST LEGISLATIVE DAY OF THE NEXT
REGULAR SESSION OF THE GENERAL
ASSEMBLY: This date is the first
legislative day of the next regular session
of the General Assembly following
approval of the rule by the Rules Review
Commission. See G.S. 150B-21.3,
Effective date of rules.
IN ADDITION
15:3 NORTH CAROLINA REGISTER August 1, 2000 221
This Section contains public notices that are required to be published in the Register or have been approved by the Codifier of
Rules for publication.
TITLE 15A – DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES
CHAPTER 2 – ENVIRONMENTAL MANAGEMENT
SUBCHAPTER 2B – SURFACE WATERS AND WETLANDS STANDARDS
SECTION .0300 – ASSIGNMENT OF STREAM CLASSIFICATIONS
TIME EXTENSION FOR 15A NCAC 2B .0300
Informational Item
A public hearing was held in Wake Forest on July 13, 2000 for the proposed surface water reclassifications of the upper Neuse River
from Falls Lake Dam to a point downstream which includes Richland Creek and unnamed tributaries to the Neuse River upstream of
the proposed intake to Falls Lake Dam to be reclassified from Class C NSW to Class Water Supply-IV NSW with a segment being
reclassified to Water Supply-IV Critical Area (CA) NSW. The hearing was also for the proposed reclassification of Fantasy Lake as a
Water Supply CA for the Town of Rolesville. The proposed rule texts were published in the June 15, 2000 (14:24) NC Register.
Officials representing the Town of Wake Forest have requested an extension of the comment period for the proposed Neuse River
reclassification from July 27, 2000 to August 10, 2000 in order to better address local issues pertaining to local zoning and allow time
for comments to be received regarding that issue. The Hearing Officer, Paul Rawls, has agreed to extend the hearing record for the
subject proposed reclassification until August 10, 2000. The comment period for the proposed reclassification of Fantasy Lake will
also be extended until August 10, 2000. Comments on the proposed reclassifications may be submitted to: Jeff Manning, DWQ
Planning Branch, 1617 Mail Service Center, Raleigh, NC 27699. Tel: (919) 733-5083, ext. 579.
RULE-MAKING PROCEEDINGS
222 NORTH CAROLINA REGISTER August 1, 2000 15:3
A Notice of Rule-making Proceedings is a statement of subject matter of the agency's proposed rule making. The agency must
publish a notice of the subject matter for public comment at least 60 days prior to publishing the proposed text of a rule.
Publication of a temporary rule serves as a Notice of Rule-making Proceedings and can be found in the Register under the
section heading of Temporary Rules. A Rule-making Agenda published by an agency serves as Rule-making Proceedings and can
be found in the Register under the section heading of Rule-making Agendas. Statutory reference: G.S. 150B-21.2.
TITLE 12 – DEPARTMENT OF JUSTICE
CHAPTER 7 – PRIVATE PROTECTIVE SERVICES
Notice of Rule-making Proceedings is hereby given by the NC
Private Protective Services Board in accordance with G.S.
150B-21.2. The agency shall subsequently publish in the
Register the text of the rule(s) it proposes to adopt as a result of
this notice of rule-making proceedings and any comments
received on this notice.
Citation to Existing Rule Affecte d by this Rule-making: 12
NCAC 7D .0104 - Other rules may be proposed in the course of
the rule-making process.
Authority for the Rule-making: G.S. 74C-5
Statement of the Subject Matter: The terms "Administrator"
and "Director" will be added to the definition section.
Reason for Proposed Action: The term "Administrator" is not
consistent with the Department of Justice personnel terminology,
which refers to the position as "Director." Therefore, the terms
should be synonymous and the amendment to the rule will
attempt to define the meanings.
Comment Procedures: Written comments may be submitted to
the following address: W. Wayne Woodard, NC Private
Protective Services Board, 3320 Old Garner Rd., Raleigh, NC
27626.
* * * * * * * * * * * * * * * * * * * *
CHAPTER 11 – NORTH CAROLINA ALARM SYSTEMS
LICENSING BOARD
Notice of Rule-making Proceedings is hereby given by the NC
Alarm Systems Licensing Board in accordance with G.S. 150B-
21.2. The agency shall subsequently publish in the Register the
text of the rule(s) it proposes to adopt as a result of this notice of
rule-making proceedings and any comments received on this
notice.
Citation to Existing Rule Affected by this Rule-making: 12
NCAC 11 - Other rules may be proposed in the course of the
rule-making process.
Authority for the Rule-making: G.S. 74D-5(a)(1,2,3,4,5,&6),
74D-6
Statement of the Subject Matter: The Board proposes
adopting rules to establish a "grading system" that will be used
during background investigations of applicants for license or
registration. The "grading system" will be used to determine if
an applicant, who has a criminal record, has the requisite good
moral character to hold a license or registration.
Reason for Proposed Action: Currently, the Board has no
rules to establish a standard for good moral character for
applicants with a prior criminal history. To prevent arbitrary
decision making, the Board believes a standard should be
established which can be used by the staff or the industry in
reviewing applicants for a license or a registration.
Comment Procedures: The record is open for receipt of
written comments. Such comments, to become part of the
record, must be submitted to Administrator W. Wayne Woodard,
Alarm Systems Licensing Board, 3320 Old Garner Rd, Raleigh,
NC 27626.
TITLE 15A – DEPARTMENT OF ENVIRONMENT AND
NATURAL RESOURCES
CHAPTER 7 – COASTAL MANAGEMENT
Notice of Rule-making Proceedings is hereby given by the
Coastal Resources Commission in accordance with G.S. 150B-
21.2. The agency shall subsequently publish in the Register the
text of the rule(s) it proposes to adopt as a result of this notice of
rule-making proceedings and any comments received on this
notice.
Citation to Existing Rule Affected by this Rule-making: 15A
NCAC 7H .0308, .1705 - Other rules may be proposed in the
course of the rule-making process.
Authority for the Rule-making: G.S. 113A-119.1
Statement of the Subject Matter: Sandbag placement and
Erosion Control Structure placement.
Reason for Proposed Action: A petition for rulemaking was
received from the Town of Surf City asking that the rules on
sandbag erosion control structures of the Coastal Resources
Commission's administrative rules be amended so that a more
reasonable standard is applied to determine removal of the
structures when a community is actively pursuing a beach
nourishment project. It has been determined that these erosion
control structures need to stay in place to encourage and allow
RULE-MAKING PROCEEDINGS
15:3 NORTH CAROLINA REGISTER August 1, 2000 223
adequate time for beach re-nourishment and for re-vegetation
efforts to be carried out.
Comment Procedures: Please submit comments to Charles
Jones, 151-B Highway 24, Hestron Plaza II, Morehead City, NC
28557.
* * * * * * * * * * * * * * * * * * *
CHAPTER 13 – SOLID WASTE MANAGEMENT
Notice of Rule-making Proceedings is hereby given by DENR
Commission for Health Services in accordance with G.S. 150B-
21.2. The agency shall subsequently publish in the Register the
text of the rule(s) it proposes to adopt as a result of this notice of
rule-making proceedings and any comments received on this
notice.
Citation to Existing Rule Affected by this Rule-making: 15A
NCAC 13A .0107; .0109; .0113; .0119 - Other rules may be
proposed in the course of the rule-making process.
Authority for the Rule-making: G.S. 130A-294(c); 150B-21.6
Statement of the Subject Matter:
15A NCAC 13A .0107 - STDS APPLICABLE TO
GENERATORS OF HAZARDOUS WASTE – PART 262
Establishes standards which apply to generators of hazardous
waste.
15A NCAC 13A .0109 - STANDARDS FOR
OWNERS/OPERATORS OF HWTSD FACILITIES – PART 264
Establishes standards for owners and/or operators of hazardous
waste facilities (treatment, storage or disposal facilities).
15A NCAC 13A .0113 - THE HAZARDOUS WASTE PERMIT
PROGRAM – PART 270 Establishes permit application
information requirements and permit procedures.
15A NCAC 13A .0119 - STANDARDS FOR UNIVERSAL
WASTE MANAGEMENT – PART 273 Streamlines hazardous
waste management regulations governing the collection and
management of certain widely generated wastes, known as
"universal waste". This universal waste rule covers hazardous
waste batteries (e.g. nickel cadmium), certain hazardous waste
pesticides, and mercury-containing thermostats. By reducing
regulatory requirements, this rule will encourage state and local
governments and manufacturers to establish environmentally
sound collecting programs, and retailers to participate in them.
Reason for Proposed Action:
15A NCAC 13A .0107 - STDS APPLICABLE TO
GENERATORS OF HAZARDOUS WASTE – PART 262
Eliminated requirements to use the North Carolina Hazardous
Waste Manifest form. Instead the Federal Hazardous Waste
Manifest form shall be used.
15A NCAC 13A .0109 - STANDARDS FOR
OWNERS/OPERATORS OF HWTSD FACILITIES – PART 264
The proposed amendment adds 40 CFR 264.554 "Staging Piles"
to Paragraph (s) (Subpart S), "Corrective Action for Solid Waste
Management Units".
15A NCAC 13A .0113 - THE HAZARDOUS WASTE PERMIT
PROGRAM – PART 270 The proposed amendment incorporates
by reference all of Subpart F "Special Forms of Permits", and
excludes 40 CFR 270.68 which is not incorporated by reference.
.0113(i) has been revised to properly exclude those Federal
Regulations that North Carolina is not adopting. Section 270.68
"Remedial Action Plans (RAPs)" allows less stringent provisions
in remediation at North Carolina hazardous waste sites.
15A NCAC 13A .0119 - STANDARDS FOR UNIVERSAL
WASTE MANAGEMENT – PART 273 The proposed amendment
adds 40 CFR 273.7 which is reserved, Section 273.8
"Applicability—household and conditionally exempt small
quantity generator waste", and 273.9 "Definitions" to
Paragraph (a), (Subpart A), "General". North Carolina had
previously adopted the "Definitions" as 40 CFR 273.6. EPA
renumbered the "Definitions" from 273.6 to 273.9 and added
273.8 to describe the applicability of this regulation.
Comment Procedures: Written comments may be submitted to
Jill Burton, Acting Chief, Hazardous Waste Section, Division of
Waste Management, 1646 Mail Service Center, Raleigh, NC
27699-1646.
PROPOSED RULES
224 NORTH CAROLINA REGISTER August 1, 2000 15:3
This Section contains the text of proposed rules. At least 60 days prior to the publication of text, the agency published a Notice of
Rule-making Proceedings. The agency must accept comments on the proposed rule for at least 30 days from the publication date,
or until the public hearing, or a later date if specified in the notice by the agency. The required comment period is 60 days for a
rule that has a substantial economic impact of at least five million dollars ($5,000,000). Statutory reference: G.S. 150B-21.2.
TITLE 10 – DEPARTMENT OF HEALTH AND HUMAN
SERVICES
Notice is hereby given in accordance with G.S. 150B-21.2 that
the NC Child Care Commission intends to amend the rules cited
as 10 NCAC 3U .0302, .0604, .0803, .1304, .1601, .1604, .1606,
.1702, .1719-.1722, .1801, .1901, .1903-.1904, .2006-.2012,
.2101, .2201, .2206. Notice of Rule-making Proceedings was
published in the Register on March 1, 2000.
Proposed Effective Date: April 1, 2001
Public Hearing:
Date: August 17, 2000
Time: 4:00 p.m. – 7:00 p.m.
Location: Division of Child Development, Room 300,
320 Chapanoke Rd., Suite 120, Raleigh, NC 27603
Reason for Proposed Action: The Child Care Commission
proposes amending these rules to protect the health and safety of
children in child care centers and family child care homes. This
includes provision for evacuating children safely in case of
emergency, safe administration of medication, safe storage of
combustible materials, and provisions for discipline practices to
be age and developmentally appropriate. Other revisions are
proposed relating to recordkeeping, application for child care
licenses, and technical changes to update terminology and
references.
Comment Procedures: Anyone wishing to comment of these
proposed rules or to request copies of the rules should contact
Janice Fain, APA Coordinator, NC Division of Child
Development, 2201 Mail Service Center, Raleigh, NC 27699-
2201, phone 919-662-4543. Written comments will be accepted
through September 1, 2000. Oral comments may be made
during the public hearing. The Commission Chairperson may
impose time limits for oral remarks.
Fiscal Impact
State 10 NCAC 3U .0604
Local 10 NCAC 3U .0604
Substantive (>$5,000,000)
None 10 NCAC 3U .0302, .0803, .1304, .1601, .1604
.1606, .1702, .1719-.1722, .1801, .1901, .1903-.1904, .2006-
.2012, .2101, .2201, .2206
CHAPTER 3 – FACILITY SERVICES
SUBCHAPTER 3U – CHILD CARE STANDARDS
SECTION .0300 – PROCEDURES FOR OBTAINING A
LICENSE
10 NCAC 3U .0302 APPLICATION FOR A LICENSE FOR
A CHILD CARE CENTER
(a) The individual who will be legally responsible for the
operation of the center, which includes assuring compliance with
the licensing law and standards, shall apply for a license using
the form provided by the Division. If the operator will be a
group, organization, or other entity, an officer of the entity who
is legally empowered to bind the operator shall complete and
sign the application.
(b) The applicant shall arrange for inspections of the center by
the local health, building and fire inspectors. The applicant shall
provide an approved inspection report signed by the appropriate
inspector to the Division representative.
(1) A provisional classification may be accepted in
accordance with Rule .0401(1) of this Subchapter.
(2) When a center does not conform with a specific
building, fire, or sanitation standard, the appropriate
inspector may submit a written explanation of how
equivalent, alternative protection is provided. The
Division may accept the inspector's documentation in
lieu of compliance with the specific standard. Nothing
in this Regulation is to preclude or interfere with
issuance of a provis ional license pursuant to Section
.0400 of this Subchapter.
(c) The applicant, or the person responsible for the day-to-day
operation of the center, shall be able to describe the plans for the
daily program, including room arrangement, staffing patterns,
equipment, and supplies, in sufficient detail to show that the
center will comply with applicable requirements for activities,
equipment, and staff/child ratios for the capacity of the center
and type of license requested. The applicant shall make the
following written information available to the Division for
review to verify compliance with provisions of this Subchapter
and the licensing law:
(1) daily schedules,
(2) activity plans,
(3) emergency care plan,
(4) discipline policy,
(5) incident reports,
(6) incident logs,
(7) a copy of the certified criminal history check for the
applicant, or the applicant’s designee as defined in Rule
.2701(g) of this Subchapter, from the Clerk of Superior
Court's office in the county or counties where the
individual has resided during the previous 12 months.
(d) The applicant shall, at a minimum, demonstrate to the
Division representative that measures will be implemented to
have the following information in the center's files and readily
available to the representative for review:
(1) Staff records which include an application for
employment and date of birth; documentation of
PROPOSED RULES
15:3 NORTH CAROLINA REGISTER August 1, 2000 225
previous education, training, and experience; medical
and health records; documentation of participation in
training and staff development activities; and required
criminal records check documentation;
(2) Children's records which include an application for
enrollment; medical and immunization records; and
permission to seek emergency medical care;
(3) Daily attendance records;
(4) Records of monthly fire drills giving the date each drill
is held, the time of day, the length of time taken to
evacuate the building, and the signature of the person
that conducted the drill;
(5) Records of monthly playground inspections
documented on a checklist provided by the Division;
and
(6) Records of medication administered.
(e) The Division representative shall measure all rooms to be
used for child care and shall assure that an accurate sketch of the
center's floor plan is part of the application packet. The Division
representative shall enter the dimensions of each room to be
used for child care, including ceiling height, and shall show the
location of the bathrooms, doors, and required exits on the floor
plan.
(f) The Division representative shall make one or more
inspections of the center and premises to assess compliance with
all applicable standards.
(1) If the center is in compliance, the Division shall issue
the license.
(2) If the center does not comply, the representative may
recommend issuance of a provisional license in
accordance with Section .0400 of this Subchapter or the
representative may recommend denial of the
application. Final disposition of the recommendation to
deny is the decision of the Division.
(3) The license shall be displayed in an area that parents are
able to view daily.
(g) When If a person applies for a child care facility license
license, after any child care facility license held by that person
has been revoked or summarily suspended by the Division
within the previous 12 months, or during the appeal if a person
appeals the Division's revocation or summary suspension, the
Division may deny the application for another the license based
on the compliance history of the person applying for a license.
license under the following circumstances:
(1) if any child care facility license previously held by that
person has been denied, revoked or summarily
suspended by the Division;
(2) if the Division has initiated denial, revocation or
summary suspension proceedings against any child care
facility license previously held by that person and the
person voluntarily relinquished the license;
(3) during the appeal of a denial, revocation or summary
suspension of any child care facility license previously
held by that person; or
(4) if the Divis ion determines that the applicant has a
relationship with an operator or former operator who
previously held a license under an administrative action
described in Paragraph(g)(1), (2), or (3) of this Rule.
As used in this Rule, an applicant has a relationship
with a former operator if the former operator would be
involved with the applicant's child care facility in one
or more of the following ways:
(A) would participate in the administration or operation
of the facility;
(B) has a financial interest in the operation of the
facility;
(C) provides care to children at the facility;
(D) resides in the facility; or
(E) would be on the facility's board of directors, be a
partner of the corporation, or otherwise have
responsibility for the administration of the
business.
Authority G.S. 110-88(2); 110-88(5); 110-91; 110-92; 110-93;
110-99; 143B-168.3.
SECTION .0600 – SAFETY REQUIREMENTS FOR
CHILD CARE CENTERS
10 NCAC 3U .0604 GENERAL SAFETY
REQUIREMENTS
(a) Potentially hazardous items, such as firearms and
ammunition, hand and power tools, nails, chemicals, lawn
mowers, gasoline or kerosene, archery equipment, propane
stoves, whether or not intended for use by children, shall be
stored in locked areas or with other appropriate safeguards, or
shall be removed from the premises.
(b) Electrical outlets not in use which are located in space used
by the children shall be covered with safety plugs unless located
behind furniture or equipment that cannot be moved by a child.
(c) Electric fans shall be mounted out of the reach of children or
shall be fitted with an appropriate mesh guard to prevent access
by children.
(d) All small electrical appliances shall be used only in
accordance with the manufacturer's instructions.
(e) Electrical cords shall not be accessible to infants and
toddlers. Extension cords, except as approved by the local fire
inspector, shall not be used. Frayed or cracked electrical cords
shall be replaced.
(f) All materials used for starting fires, such as matches and
lighters, shall be kept in locked storage or shall be stored out of
the reach of children.
(g) Smoking shall not be permitted in space used by children
when children are present. All smoking materials shall be kept
in locked storage or out of the reach of children.
(h) Fuel burning heaters, fireplaces and floor furnaces shall be
provided with a protective screen attached securely to substantial
supports to prevent access by children and to prevent objects
from being thrown into them.
(i) Plants that are toxic shall not be in indoor or outdoor space
that is used by or is accessible to children.
(j) The outdoor play area shall be protected by a fence or other
protection. The height shall be a minimum of four feet and the
top of the fence shall be free of protrusions by January 1, 1999.
The requirement disallowing protrusions on the tops of fences
shall not apply to fences six feet high or above. The fencing
shall exclude fixed bodies of water such as ditches, quarries,
canals, excavations, and fish ponds. Gates to the fenced outdoor
play area shall remain securely closed while children occupy the
area. When the center uses areas outside the fenced outdoor play
area for children's activities or takes children off the premises for
PROPOSED RULES
226 NORTH CAROLINA REGISTER August 1, 2000 15:3
play or outings, the parent of each child shall give written
permission for the child to be included in such activities. The
permission may be:
(1) a one-time, blanket permission for all activities;
(2) a one-time, blanket permission for a specific activity at
any time; or
(3) a one-time permission for a specific activity at a
designated time.
The center shall maintain the signed permission in the child's
record. When children are taken off the premises, staff
accompanying the children shall have a list of the names of all
children participating in the outing. When the center provides
transportation for children, the center shall furnish parents the
names of all regularly scheduled drivers.
(k) Air conditioning units shall be located so that they are not
accessible to children or shall be fitted with a mesh guard to
prevent objects from being thrown into them.
(l) Gas tanks shall be located so they are not accessible to the
children or shall be in a protective enclosure or surrounded by a
protective guard.
(m) Cribs and playpens shall be placed so that the children
occupying them shall not have access to cords or ropes, such as
venetian blind cords.
(n) Children shall not be allowed to play on outdoor equipment
that is too hot to touch.
(o) The indoor and outdoor premises shall be checked daily for
debris, vandalism and broken equipment. Debris shall be
removed and disposed of appropriately.
(p) The playground surface area shall be checked at least
weekly to assure that surface material is maintained to assure
continued resiliency.
(q) Following completion of safety training by the administrator
or other staff person as required by Rule .0705(e) of this
Subchapter, a monthly playground inspection shall be conducted
and a record of each inspection shall be completed. This staff
person shall use a playground inspection checklist provided by
the Division. The checklist shall be signed by the person who
conducts the inspection and shall be maintained in the center's
files for review by a representative of the Division.
(r) Plastic bags, toys and toy parts small enough to be
swallowed, and materials that can be easily torn apart such as
foam rubber and styrofoam, shall not be accessible to children
under three years of age, except that styrofoam plates and larger
pieces of foam rubber may be used for supervised art activities
and styrofoam plates may be used for food service. Latex and
rubber balloons shall not be accessible to children under five
years of age.
(s) When non-mobile children are in care, a crib or other
approved device shall be available for evacuation in case of fire
or other emergency. The crib or other approved device shall be
fitted with wheels in order to be easily moveable, have a
reinforced bottom, and shall be able to fit through the designated
fire exit. For centers that do not meet institutional building code,
and the exit is more than eight inches above grade, the center
shall develop a plan to ensure a safe and timely evacuation of the
crib or other approved device. This plan shall be demonstrated
to a Division representative for review and approval. During the
monthly fire drills required by Rule 10 NCAC 3U .0302d(4), the
evacuation crib or other approved device shall be used in the
manner described in the evacuation plan.
Authority G.S. 110-85(1); 110-91(3),(6); 143B-168.3.
SECTION .0800 – HEALTH STANDARDS FOR
CHILDREN
10 NCAC 03U .0803 ADMINISTERING
MEDICATION
(a) No drug or medication shall be administered to any child
without specific instructions from the child's parent, a physician,
or other authorized health professional. No drug or medication
shall be administered after its expiration date. No drug or
medication shall be administered for non-medical reasons, such
as to induce sleep.
(1) Prescribed medicine shall be in its original container
bearing the pharmacist's label which lists the child's
name, date the prescription was filled, the physician's
name, the name of the medicine or the prescription
number, and directions for dosage, or be accompanied
by written instructions for dosage, bearing the child's
name, which are dated and signed by the prescribing
physician or other health professional. Prescribed
medicine shall be administered as authorized in writing
by the child's parent, only to the person for whom it is
prescribed.
(2) Over-the-counter medicines, such as cough syrup,
decongestant, acetaminophen, ibuprofen, topical
teething medication, topical antibiotic cream for
abrasions, or medication for intestinal disorders shall be
in its original container and shall be administered as
authorized in writing by the child's parent, not to
exceed amounts and frequency of dosage specified in
the printed instructions accompanying the medicine.
The parent's authorization shall give the child's name,
the specific name of the over-the-counter medicine,
dosage instructions, the parent's signature, and the date
signed. Over-the-counter medicine may also be
administered in accordance with written instructions
from a physician or other authorized health
professional.
(3) When any questions arise concerning whether
medication provided by the parent should be
administered, that medication shall not be administered
without signed, written dosage instructions from a
licensed physician or authorized health professional.
(4) A written statement from a parent may give blanket
permission for up to six months to authorize
administration of medication for asthma and allergic
reactions. A written statement from a parent may give
blanket permission for up to one year to authorize
administration of sunscreen and over-the-counter
diapering creams. The written statement shall describe
the specific conditions under which these medications
and creams are to be administered and detailed
instructions on how they are to be administered.
(5) A written statement from a parent may give blanket
permission to administer a one-time, weight appropriate
dose of acetaminophen in cases where the child has a
fever and the parent cannot be reached.
(b) Any medication remaining after the course of treatment is
completed shall be returned to the child's parents.
PROPOSED RULES
15:3 NORTH CAROLINA REGISTER August 1, 2000 227
(c) Any time medication other than sunscreen or diapering
creams is administered by center personnel to children receiving
care, the child's name, the date, time, amount and type of
medication given, and the name and signature of the person
administering the medication shall be recorded. This
information shall be noted on a medication permission slip, or on
a separate form developed by the provider which includes the
required information. This information shall be available for
review by a representative of the Division during the time period
the medication is being administered and for at least six months
after the medication is administered.
Authority G.S. 110-91(1),(9); 143B-168.3.
SECTION .1300 – BUILDING CODE REQUIREMENTS
FOR CHILD CARE CENTERS
10 NCAC 03U .1304 REQUIREMENTS FOR CHILD
CARE CENTERS LICENSED IN A RESIDENCE
For the purpose of carrying out the provisions of G.S. 110-91(4),
the North Carolina Building Code standards in Volume I,
General Construction, for Large Day Care Homes developed by
the Building Code Council are hereby incorporated by reference
by the Child Care Commission and include subsequent
amendments for child care centers licensed in a an occupied
residence for three to 12 children when any preschool-aged
children are in care, or for three to 15 children when only
school-aged children are in care. A copy of the North Carolina
Building Code standards is on file at the Division of Child
Development located at the address given in Rule .0102 of this
Subchapter and will be available for public inspection during
regular business hours.
Authority G.S. 110-91(4); 143B-168.3.
SECTION .1600 - REQUIREMENTS FOR VOLUNTARY
ENHANCED PROGRAM STANDARDS
10 NCAC 03U .1601 ADMINISTRATIVE POLICIES
REQUIRED
AA centers and other centers Centers seeking a two through five
star rated license points for through the voluntary enhanced
program standards shall have administrative policies and
practices which provide for responsible selection and training of
staff, on-going communication with and opportunities for
participation by parents, sound operational and fiscal
management, and objective evaluation of the program,
management and staff in accordance with the rules of this
Section.
Authority G.S. 110-88(7); 143B-168.3.
10 NCAC 03U .1604 SPACE REQUIREMENTS
(a) There shall be at least 30 square feet inside space per child
present at any one time and 100 square feet outside space per
child present at any one time. Or, there shall be at least 35
square feet inside space per child present at any one time and
100 square feet outside space per child for at least 50 percent of
the total number of children present at any one time.
(b) To achieve two points for program standards, centers shall
meet all requirements for voluntary enhanced program standards
in Section .1600 of this Subchapter, except that centers may
meet either the space requirements in Paragraph(a) of this Rule
or the staff/child ratios required in 10 NCAC 03U .1606(a).
(b)(c) There must be an area which can be arranged for
adminis trative and private conference activities.
Authority G.S. 110-88(7); 143B-168.3.
10 NCAC 03U .1606 STAFF/CHILD RATIOS
(a) The center shall comply with the staff-child ratios and
maximum group sizes set in this Rule.
MAXIMUM
AGE STAFF NO. OF CHILDREN GROUP SIZE STAFF
Birth to 12 Months 1 5 10 2
1 to 2 Years 1 6 12 2
2 to 3 Years 1 9 18 2
3 to 4 Years 1 10 20 2
4 to 5 Years 1 13 25 2
5 to 6 Years 1 15 25 2
6 Years and Older 1 20 25 2
(b) All provisions, excluding staff/child ratios and group sizes
of Rules .0712 and .0713 of this Subchapter shall apply.
(c) To achieve two points for program standards, centers shall
meet all requirements for voluntary enhanced program standards
in Section .1600 of this Subchapter, except that centers may
meet either the staff/child ratios required in Paragraph(a) of this
Rule or the space requirements in 10 NCAC 03U .1604(a).
Authority G.S. 110-88(7); 143B-168.3.
SECTION .1700 – FAMILY CHILD CARE HOME
STANDARDS
10 NCAC 03U .1702 APPLICATION FOR A LICENSE
FOR A FAMILY CHILD CARE HOME
(a) Any person who plans to operate a family child care home
shall apply for a license using a form provided by the Division.
The applicant shall submit the completed application, which
complies with the following, to the Division:
(1) Only one licensed family child care home shall operate
at the location address of any home.
(2) The applicant shall list each location address where a
licensed family child care home will operate.
(b) When a family child care home will operate at more than
one location address by cooperative arrangement among two or
more families, the following procedures shall apply:
(1) One parent whose home is used as a location address
shall be designated the coordinating parent and shall co-sign
the application with the applicant.
PROPOSED RULES
228 NORTH CAROLINA REGISTER August 1, 2000 15:3
(2) The coordinating parent is responsible for knowing the
current location address at all times and shall provide
the information to the Division upon request.
(c) The operator shall assure that the structure in which the
family child care home is located complies with the following
requirements:
(1) Comply with the North Carolina Building Code for
family child care homes or have written approval for
use as a family child care home by the local building
inspector as follows:
(A) Meet Volume I-B Uniform Residential Building
Code or be a manufactured home bearing a third
party inspection label certifying compliance with
the Federal Manufactured Home Construction and
Safety Standards or certifying compliance with
construction standards adopted and enforced by the
State of North Carolina. Homes shall be installed
in accordance with NC Manufactured/Mobile
Home Regulations published by the NC
Department of Insurance;
Exception: Single wide
manufactured homes will be limited
to a maximum of three preschool-aged
children (not more than two may
be two years of age or less) and two
school-aged children.
(B) All children shall be kept on the ground level with
an exit at grade;
(C) All homes shall be equipped with an electrically
operated (with a battery backup) smoke detector, or
one electrically operated and one battery operated
smoke detector located next to each other;
(D) All homes shall be provided with at least one five
lb. 2-A:10-B:C type extinguisher readily accessible
for every 2,500 square feet of floor area; and
(E) Fuel burning space heaters, fireplaces and floor
furnaces which are listed and approved for that
installation and are provided with a protective
screen attached securely to substantial supports
will be allowed. However, unvented fuel burning
heaters and portable electric space heaters of all
types are prohibited.
(2) Assure that all indoor areas used by children are heated
in cool weather and ventilated in warm weather.
(3) Cover or insulate hot pipes or radiators which are
accessible to the children.
(d) The applicant shall also submit supporting documentation
with the application for a license to the Division. The
supporting documentation shall include a copy of the applicant’s
certified criminal history check from the Clerk of Superior
Court’s office in the county or counties where the individual has
resided during the previous 12 months; a copy of documentation
of completion of a first aid and cardiopulmonary resuscitation
(CPR) course; proof of negative results of the applicant’s
tuberculosis test completed within the past 12 months; a
completed health questionnaire; a copy of current pet
vaccinations for any pet in the home; a negative well water
bacteriological analysis if the home has a private well; copies of
any inspections required by local ordinances; and any other
documentation required to support the issuance of a license
required by the Division.
(e) Upon receipt of an acceptable application and supporting
documentation as required by the Division, a Division
representative shall make an announced visit to each home
unless the applicant meets the criteria in Paragraph (g) of this
Rule to determine compliance with the standards, to offer
technical assistance when needed, and to provide information
about local resources.
(1) If the home is found to be in compliance with the
applicable requirements of G.S. 110 and this Section, a
license shall be issued.
(2) If the home is not in compliance but has the potential to
comply, the Division representative shall establish with
the operator a reasonable time period for the home to
achieve full compliance. If the Division representative
determines that the home is in compliance within the
established time period, a license shall be issued.
(3) If the home is not in compliance, cannot potentially
comply, or fails to comply within the appropriate time,
the Division shall deny the application. Final
disposition of the recommendation to deny is the
decision of the Division.
(f) In emergency situations as determined by the Division, the
Division may allow the applicant to temporarily operate prior to
the Division representative’s visit described in Paragraph (e) of
this Rule. A person is not able to operate legally until he or she
has received from the Division either temporary permission to
operate or a license.
(g) When If a person applies for a child care facility license
license, after any child care facility license held by that person
has been revoked or summarily suspended by the Division
within the previous 12 months, or during the appeal if a person
appeals the Division's revocation or summary suspension, the
Div ision may deny the application for another the license based
on the compliance history of the person applying for a license.
license under the following circumstances:
(1) if any child care facility license previously held by that
person has been denied, revoked or summarily
suspended by the Division;
(2) if the Division has initiated denial, revocation or
summary suspension proceedings against any child care
facility license previously held by that person and the
person voluntarily relinquished the license;
(3) during the appeal of a denial, revocation or summary
suspension of any child care facility license previously
held by that person; or
(4) if the Division determines that the applicant has a
relationship with an operator or former operator who
previously held a license under an administrative action
described in Paragraph(g)(1), (2), or (3) of this Rule.
As used in this Rule, an applicant has a relationship
with a former operator if the former operator would be
involved with the applicant's child care facility in one
or more of the following ways:
(A) would participate in the administration or operation
of the facility;
(B) has a financial interest in the operation of the
facility;
(C) provides care to the children at the facility;
(D) resides in the facility; or
(E) would be on the facility's board of director's, be a
partner of the corporation, or otherwise have
PROPOSED RULES
15:3 NORTH CAROLINA REGISTER August 1, 2000 229
responsibility for the administration of the
business.
(h) Use of the license is limited to the following conditions:
(1) The license cannot be bought, sold, or transferred from
one individual to another.
(2) The license is valid only for the location
address/addresses listed on it.
(3) The license must be returned to the Division in the
event of termination or revocation.
(4) The license shall be displayed in a prominent place that
parents are able to view daily and shall be shown to
each child's parent, guardian, or custodian when the
child is enrolled.
(i) A licensee is responsible for notifying the Division whenever
a change occurs which affects the information shown on the
license.
Authority G.S. 110-88(5); 110-91; 110-93; 110-99; 143B-168.3.
10 NCAC 03U .1719 REQUIREMENTS FOR A SAFE
INDOOR/OUTDOOR ENVIRONMENT
The operator shall maintain a safe indoor and outdoor
environment for the children in care. In addition, the operator
shall: The operator shall make all necessary efforts to provide a
safe indoor and outdoor environment for the children in care.
The operator shall:
(1) keep all areas used by the children, indoors and
outdoors, clean and orderly and free of items which are
potentially hazardous to children. This includes the
removal of small items that a child can swallow. In
addition, loose nails or screws and splinters shall be
removed on inside and outside equipment.
(2) safely store equipment and supplies such as
lawnmowers, power tools, or nails, so they are
inaccessible to children.
(3) ensure that all stationary outdoor equipment is firmly
anchored and is not installed over concrete or asphalt.
Footings which anchor the equipment shall not be
exposed.
(4) securely mount electric fans out of the reach of children
or have a mesh guard on each fan.
(5) cover all electrical outlets not in use and remove old,
cracked or frayed cords in occupied outlets.
(6) have solid and safe indoor and outdoor stairs and steps
if these are used by the children. Indoor and outdoor
stairs with two or more steps which are used by the
children shall be railed. Indoor stairs with more than
two steps shall be made inaccessible to children in care
who are two years old or younger.
(7) maintain any swimming pools or wading pools on the
premises in a manner which will safeguard the lives and
health of the children. All swimming or wading pools
used by children in care shall meet the "Rules
Governing Public Swimming Pools," in accordance
with 15A NCAC 18A .2500 which are hereby
incorporated by reference including subsequent
amendments. A copy of these Rules is on file at the
Division at the address given in Rule .0102 of this
Subchapter or may be obtained at no cost by writing the
North Carolina Department of Environment and Natural
Resources, Division of Environmental Health, PO Box
29534, Raleigh, NC 27626-0534.
(8) enclose any in-ground swimming pools by a fence four
feet high to prevent chance access by children. The
swimming pool shall be separate from the play area.
Access to the water in above ground swimming pools
shall be prevented by locking and securing the ladder in
place or storing the ladder in a place inaccessible to the
children.
(9) ensure that animals that are potentially dangerous to
children as determined by the Division are safely
secured in areas not accessible to the children in care.
(10) safely store all combustible materials that may create a
fire hazard.
Authority G.S. 110-88; 91(3),(4),(5),(6).
10 NCAC 03U .1720 SAFETY AND SANITATION
REQUIREMENTS
(a) To assure the safety of children in care, the operator shall:
(1) separate firearms from ammunition and keep both in
locked storage.
(2) keep items used for starting fires, such as matches and
lighters, out of the children's reach.
(3) keep all medicines in locked storage.
(4) keep hazardous cleaning supplies and other items that
might be poisonous , e.g., toxic plants, out of reach or
in locked storage when children are in care .
(5) keep first-aid supplies in a place easily accessible to the
operator.
(6) ensure the equipment and toys are in good repair and
are developmentally appropriate for the children in
care.
(7) have a working telephone within the family child care
home. Telephone numbers for the fire department, law
enforcement office, emergency medical service, and
poison control center shall be posted near the telephone.
(8) have access to a means of transportation that is always
available for emergency situations.
(9) be able to recognize common symptoms of illnesses.
(b) No drug or medication shall be administered to any child
without specific instructions from the child’s parent, a physician,
or other authorized health professional. No drug or medication
shall be administered for non-medical reasons, such as to induce
sleep.
(1) Prescribed medicine shall be in its original container
bearing the pharmacist's label which lists the child's
name, date the prescription was filled, the physician's
name, the name of the medicine or the prescription
number, and directions for dosage, or be accompanied
by written instructions for dosage, bearing the child's
name, which are dated and signed by the prescribing
physician or other health professional. Prescribed
medicine shall be administered as authorized in writing
by the child' parent, only to the person for whom it is
prescribed.
(2) Over-the-counter medicines, such as cough syrup,
decongestant, acetaminophen, ibuprofen, topical
teething medication, topical antibiotic cream for
abrasions, or medication for intestinal disorders shall be
in its original container and shall be administered as
PROPOSED RULES
230 NORTH CAROLINA REGISTER August 1, 2000 15:3
authorized in writing by the child's parent, not to
exceed amounts and frequency of dosage specified in
the printed instructions accompanying the medicine.
The parent's authorization shall give the child's name,
the specific name of the over-the counter medicine,
dosage instructions, the parent's signature, and the date
signed. Over-the counter medicine may also be
administered in accordance with instructions from a
physician or other authorized health professional.
(3) When any questions arise concerning whether
medication provided by the parent should be
administered, that medication shall not be administered
without signed, written dosage instructions from a
licensed physician or authorized health professional.
(4) A written statement from a parent may give blanket
permission for up to six months to authorize
administration of medication for asthma and allergic
reactions. A written statement from a parent may give
blanket permission for up to one year to authorize
administration of topical ointments such as sunscreen
and over-the-counter diapering creams. The written
statement shall describe the specific conditions under
which the medication and creams are to be administered
and detailed instructions on how they are to be
administered. A written statement from a parent may
give blanket permission to administer a one-time,
weight appropriate dose of acetaminophen in cases
where the child has a fever and the parent can not be
reached.
(5) Any medication remaining after the course of treatment
is completed shall be returned to the child’s parents.
(6) Any time the operator administers medication other
than sunscreen and diapering creams to any child in
care, the child’s name, the date, time, amount and type
of medication given, and the signature of the operator
shall be recorded. This information shall be noted on a
form provided by the Division or on a separate form
developed by the operator which includes the required
information. This information shall be available for
review by a representative of the Division during the
time period the medication is being administered and
for at least six months after the medication is
administered.
(c) To assure the health of children through proper sanitation,
the operator shall:
(1) collect and submit samples of water from each well
used for the children's water supply for bacteriological
analysis to the local health department or a laboratory
certified to analyze drinking water for public water
supplies by the North Carolina Division of Laboratory
Services every two years. Results of the analysis shall
be on file in the home.
(2) have sanitary toilet, diaper changing and handwashing
facilities. Diaper changing areas shall be separate from
food preparation areas.
(3) use sanitary diapering procedures. Diapers shall be
changed whenever they become soiled or wet. The
operator shall:
(A) wash his or her hands before, as well as after,
diapering each child.
(B) wash the child’s hands after diapering the child.
(C) place soiled diapers in a covered, leak-proof
container which is emptied and cleaned daily.
(4) use sanitary procedures when preparing and serving
food. The operator shall:
(A) wash his or her hands before and after handling
food and feeding the children.
(B) wash the child' hands before and after the child is
fed.
(5) refrigerate all perishable food and beverages. The
refrigerator shall be in good repair and maintain a
temperature of 45 degrees Fahrenheit or below. A
refrigerator thermometer is required to monitor the
temperature.
(6) date and label all bottles for each individual child,
except when there is only one bottle-fed child in care.
(7) have a house that is free of rodents.
(8) screen all windows and doors used for ventilation.
(9) have all household pets vaccinated with up-to-date
vaccinations as required by North Carolina law and
local ordinances. Rabies vaccinations are required for
cats and dogs.
(10) store garbage in waterproof containers with tight fitting
covers.
(d) The operator shall not force children to use the toilet and the
operator shall consider the developmental readiness of each
individual child during toilet training.
Authority G.S. 110-88; 110-91(6).
10 NCAC 03U .1721 REQUIREMENTS FOR RECORDS
(a) The operator shall maintain the following health records for
each child who attends on a regular basis:
(1) a copy of the child's health assessment as required by
G.S. 110-91(1).
(2) a copy of the child's immunization record.
(3) a health and emergency information form provided by
the Division that is completed and signed by the child's
parents or guardian. The completed form shall be on
file the first day the child attends. An operator may use
another form other than the one provided by the
Division, as long as the form includes the following
information:
(A) the child's name, address, and date of birth;
(B) the names of individuals to whom the child may be
released;
(C) the general status of the child's health;
(D) any allergies or restrictions on the child's
participation in activities with specific instructions
from the child's parent or physician;
(E) the names and phone numbers of persons to be
contacted in an emergency situation;
(F) the name and phone number of the child's
physician and preferred hospital;
(G) notarized authorization for the operator to seek
emergency medical care in the parent's absence.
(4) when medication is administered, authorization for the
operator to administer the specific medication
according to the parent's or physician's instructions.
(b) The operator shall complete and maintain other records
which shall include:
PROPOSED RULES
15:3 NORTH CAROLINA REGISTER August 1, 2000 231
(1) documentation for the operator's procedures in
emergency situations, on a form which shall be
provided by the Division.
(2) documentation that monthly fire drills are practiced.
The documentation shall include the date each drill is
held, the time of day, the length of time taken to
evacuate the home, and the operator's signature.
(3) incident reports that are completed each time a child
receives medical treatment by a physician, nurse,
physician's assistant, nurse practitioner, community
clinic, or local health department, as a result of an
incident occurring while the child is in the family child
care home. Each incident shall be reported on a form
provided by the Division, signed by the operator and
the parent, and maintained in the child's file. A copy
shall be mailed to a representative of the Division
within seven calendar days after the incident occurs.
(4) an incident log which is filled out any time an incident
report is completed. This log shall be cumulative and
maintained in a separate file and shall be available for
review by a representative of the Division. This log
shall be completed on a form supplied by the Division.
(5) documentation that a monthly check for hazards on the
outdoor play area is completed. This form shall be
supplied by the Division and shall be maintained in the
family child care home for review by a representative
of the Division.
(6) Accurate daily attendance records for all children in
care, including the operator's own preschool children.
The attendance record shall indicate the date and time
of arrival and departure for each child.
(c) Written records shall be available for review, upon request,
by a representative of the Division and shall be maintained as
follows:
(1) records required in Paragraph(b)(2) – (6) of this Rule
shall be maintained for a minimum of three years, or
during the length of time the program has operated,
whichever is less;
(2) children's records shall be maintained while the child is
enrolled, and for a minimum of three years after the
child is no longer enrolled; and
(3) all other records shall be maintained for as long as the
license to which they pertain remains valid.
Authority G.S. 110-88; 110-91(1),(9).
10 NCAC 03U .1722 DISCIPLINE POLICY
(a) The operator shall provide a written copy of and explain the
operator's discipline practices to each child's parent, legal
guardian, or full-time custodian at the time of enrollment. If an
operator changes discipline practices, the child’s parent, legal
guardian, or full-time custodian must receive written notice of
the new policy 30 days prior to the implementation of the new
policy.
(b) No child shall be subjected to any form of corporal
punishment by the family child care home operator, substitute
caregiver, or any other person in the home, whether or not these
persons reside in the home.
(c) No child shall be handled roughly in any way, including
shaking, pushing, shoving, pinching, slapping, biting, kicking, or
spanking.
(d) No child shall ever be placed in a locked room, closet, or
box. box, or be left alone in a roomseparated fromstaff.
(e) No discipline shall ever be delegated to another child.
(f) Dis cipline shall in no way be related to food, rest or toileting.
(1) No food shall be withheld, or given, as a means of
discipline.
(2) No child shall ever be disciplined for lapses in toilet
training.
(3) No child shall ever be disciplined for not sleeping
during rest period.
(g) No child shall be disciplined by assigning chores that require
contact with or use of hazardous materials, such as cleaning
bathrooms or floors, or emptying diaper pails.
(h) Discipline shall be age and developmentally appropriate.
Authority G.S. 110-91(10).
SECTION .1800 – DISCIPLINE
10 NCAC 03U .1801 DISCIPLINE POLICY
(a) The person who conducts the enrollment conference shall
provide a written copy of and explain the center's discipline
practices to each child's parents, legal guardian, or full-time
custodian at the time of enrollment. Each parents, legal
guardian, or full-time custodian must sign a statement which
attests that a copy of the center's written discipline policies were
given to and discussed with him or her. That statement must
bear the child's name, the date of enrollment, and if different, the
date the parent, legal guardian, or full-time custodian signs the
statement. The signed, dated statement must be in the child's
record and must remain on file in the center as long as the child
is enrolled. If a center changes its discipline policy at any time,
it must give written notice of such a change to the child's parent,
guardian, or full-time custodian 30 days prior to the
implementation of the new policy and the parent, guardian, or
full-time custodian must sign a statement that attests that a copy
of the new policy was given to and discussed with him or her.
This statement shall be kept in the child's file.
(b) No child shall be subjected to any form of corporal
punishment by the owner, operator, director, or staff of any day
care facility. For purposes of this Rule, "staff" shall mean any
regular or substitute caregiver, any volunteer, and any auxiliary
personnel, such as cooks, secretaries, janitors, maids, vehicle
drivers, etc.
(1) No child shall be handled roughly in any way, including
shaking, pushing, shoving, pinching, slapping, biting,
kicking, or spanking.
(2) No child shall ever be placed in a locked room, closet, or
box. box, or be left alone in a room separated from
staff.
(3) No discipline shall ever be delegated to another child.
(4) Discipline shall in no way be related to food, rest or
toileting:
(A) No food shall be withheld, or given, as a means of
discipline.
(B) No child shall ever be disciplined for lapses in
toilet training.
(C) No child shall ever be disciplined for not sleeping
during rest period.
(5) No child shall be disciplined by assigning chores that
require contact with or use of hazardous materials, such
PROPOSED RULES
232 NORTH CAROLINA REGISTER August 1, 2000 15:3
as cleaning bathrooms or floors, or emptying diaper
pails.
(6) Discipline shall be age and developmentally appropriate.
Authority G.S. 110-91(10); 143B-168.3.
SECTION .1900 – SPECIAL PROCEDURES
CONCERNING ABUSE/NEGLECT IN CHILD CARE
10 NCAC 03U .1901 NOTIFICATION TO COUNTY
DEPARTMENT OF SOCIAL SERVICES
Any allegation of abuse or neglect received by the section
Division shall be referred to the county department of social
services within 24 hours of receipt of the complaint or on the
next working day. Even if the county department of social
services determines the allegation does not warrant investigation
according to G.S. 7A-544, 7B-302, the complaint shall be
investigated by the section. Division.
Authority G.S. 110-88(5); 143B-168.3.
10 NCAC 03U .1903 INVESTIGATION PROCEDURES
(a) The investigation shall include interviews with the
registrant, operator, staff, parents, or any other adult who has
information regarding the allegation. Reports from law
enforcement officers and other professionals, as well as
photographs and other investigative tools, may be used as
appropriate.
(b) The section's Division’s representative may interview the
child or children about the allegations of abuse or neglect only in
those cases where the county department of social services does
not conduct an investigation.
(c) The section Division shall share information related to
investigations with departments of social services, as
appropriate. However, any information subject to confidentiality
laws or regulations shall be handled so as to preserve the
confidential nature of the material.
(d) At any time during the investigation, the representative of
the section Division may conduct an evaluation for compliance
with all licensing applicable requirements.
(e) The section Division shall make a written report to the
licensee/registrant operator and the county department of social
services when the investigation is completed. The section
Division may also report to law enforcement officers and other
professionals that were involved in the investigation. This report
shall explain the section's Division's findings and what further
action will be taken, if any.
(f) The final written report of findings and further action shall
be made within 90 days of receipt of the allegation. If the
investigation is not complete at that time, an interim report
explaining the status of the investigation shall be made to the
operator 90 days after receipt of the allegation and every 30 days
thereafter until the final report is made. The county department
of social services shall be sent a copy of each interim report.
Authority G.S. 7B-301; 110-88(5); 110-105; 143B-168.3.
10 NCAC 03U .1904 ADMINISTRATIVE SANCTIO NS
(a) A special provisional license or registration permit may be
issued for a six-month period when the section Division
determines that abuse or neglect occurred in a child day care
center or home. The following provisions shall apply:
(1) the special provisional license or registration permit and
the reasons for its issuance shall be posted in a
prominent place in the center or home as soon as they
are received by the licensee or registrant. operator.
(2) the special provisional license or registration permit and
reasons for issuance shall remain posted for the entire
six months covered by the license or registration,
permit, and also during the time of any administrative
proceedings.
(3) no new children shall be enrolled in the center or home
until the section Division is satisfied that the abusive or
neglectful situation no longer exists and gives the
operator written permission to accept new children.
(4) a licensee or registrant an operator may obtain an
administrative hearing on the issuance of a special
provisional license or registration permit in accordance
with the provisions of G.S. 150B-23.
(b) A written warning specifying corrective action to be taken
by the operator of the day child care center or home may be
issued when the investigation is concluded and the section
Division determines that abuse or neglect occurred in a center or
home and the situation does not warrant issuance of a special
provisional license or registration. permit.
(c) A civil penalty, in accordance with the schedules listed in
Rules .1716 and .2206 of this Subchapter, may be levied against
the operator of a day child care home or center when the Section
Division determines that child abuse or neglect has occurred
while the child was in the care of the home or center. In
addition, any violation of the terms of a special provisional
license or registration permit may result in the assessment of a
civil penalty as provided in Rule .1716 and Rules .2202 through
.2206 of this Subchapter.
(d) Failure to implement the corrective action plan required by a
written warning pursuant to G.S. 110-88(6a) may result in either
the assessment of a civil penalty as provided in Section .2200 of
this Subchapter or the issuance of a special provisional license or
registration permit or may result in both actions being taken.
(e) The type of sanction imposed by the section Division shall
be determined by one or more of the following criteria:
(1) severity of the incident;
(2) probability of reoccurrence;
(3) prior incidents of abuse or neglect in the center or
home;
(4) history of compliance with child day care requirements;
(5) the section's Division's assessment of the operator's
response to the incident.
(f) Nothing in this Rule shall restrict the division Division from
using any other statutory or administrative penalty available
pursuant to G.S. 110-102.2 and Section .2000 of this Subchapter,
or the provisions in 150B-3(c) to summarily suspend a license or
registration permit if the health, safety or welfare of any child is
in jeopardy.
Authority G.S. 110-88(5); 110-88(6a); 110-102.2; 110-103.1;
143B-168.3; 150B-3; 150B-23;
SECTION .2000 – RULEMAKING AND CONTESTED
CASE PROCEDURES
PROPOSED RULES
15:3 NORTH CAROLINA REGISTER August 1, 2000 233
10 NCAC 03U .2006 ADMINISTRATIVE PENALTIES:
GENERAL PROVISIONS
(a) Pursuant to G.S. 110-102.2, the secretary or designee may
order one or more administrative penalties against any licensee
or registrant operator who violates any provision of Article 7 of
Chapter 110 of the General Statutes or of this Subchapter.
(b) Nothing in this Section shall restrict the division Division
from using any other statutory or civil penalty available. A civil
penalty in accordance with G.S. 110-103.1 and Section .2200 of
this Subchapter may be imposed in conjunction with any other
administrative activity.
(c) The issuance of an administrative penalty may be appealed
pursuant to G.S. 150B-23.
Authority G.S. 110-102.2; 110-103.1; 143B-168.3; 150B-23.
10 NCAC 03U .2007 WRITTEN WARNINGS
(a) A written warning and a request for compliance corrective
action plan may be issued in regard to any violation to allow the
licensee or registrant operator an opportunity to demonstrate
compliance with all requirements.
(b) The written warning and request for compliance corrective
action plan shall describe the reasons for its issuance including
identification of the specific section of the statutes or rules
violated. It shall also describe those actions necessary for the
licensee or registrant operator to be in full compliance with
requirements and shall specify a time period for compliance to be
achieved.
(c) If the licensee or registrant operator fails to achieve
compliance during the specified time period, the section Division
shall employ more restrictive action to achieve compliance or
shall revoke the license or registration. permit.
Authority G.S. 110-102.2; 143B-168.3.
10 NCAC 03U .2008 WRITTEN REPRIMANDS
(a) An official written reprimand may be issued to censure any
violation which the section Division determines to have been a
brief uncustomary event which is unlikely to recur in the
ordinary operation of the center or home.
(b) The reprimand shall describe the reasons for its issuance
including identification of the specific section of the statutes or
rules violated.
Authority G.S. 110-102.2; 143B-168.3.
10 NCAC 03U .2009 PROBATIONARY STATUS
(a) A license or registration permit may be place placed in
probationary status for a period of time not to exceed one year
when, in the section's Division's determination, violation of any
section of the statutes or rules has been willful, continual, or
hazardous to health or safety.
(b) The document ordering probation shall describe the reasons
for its issuance including identification of the specific section of
the statutes or rules violated and shall specify the period of
probation. It shall also specify terms of probation with which
the licensee or registrant operator must comply to retain the
license or registration. permit.
(c) The order of probation shall be posted in a prominent place
in the center or home during the probationary period. If
probation is stayed pending appeal, the probation order shall
remain posted in the center or home pending final action.
(d) Failure of the licensee or registrant operator to comply with
the terms of probation shall result in the commencement of
proceedings to suspend or revoke the license or registration.
permit.
Authority G.S. 110-102.2; 143B-168.3.
10 NCAC 03U .2010 SUSPENSION
(a) Suspension of a license or registration permit for a period of
time not to exceed 45 days may be ordered when, in the section's
Division's determination and with the concurrence of the
Division of Facility Services' Negative Action Review
Committee, Division's Review Panel, violation of any section of
the statutes or rules has been willful, continual, or hazardous to
health or safety, and/or the licensee or registration operator has
not made reasonable efforts to conform to standards.
(b) The licensee or registrant operatorshall be notified in advance
of the section's Division's determination to suspend the license
permit and the reasons for such action. The licensee or registrant
operator may request an agency review of the situation and shall
be given an opportunity to show compliance with all requirements
for retention of the license or registration. permit.
(c) The suspension order shall specify the period of suspension
and the reasons for its issuance. The licensee or registrant
operator shall surrender the license or registration permit to the
section Division of on the effective date of the suspension order
and shall refrain from operating a center or home during the
suspension period.
(d) If suspension is stayed pending appeal, the suspension order
shall be posted in a prominent place in the center or home pending
final action.
(e) Failure to comply with the suspension order shall result in
civil action in accordance with G.S. 110-103.1 and/or criminal
penalty in accordance with G.S. 110-103. The section Division
may also seek injunctive relief in accordance with G.S. 110-104.
Authority G.S. 110-102.2; 143B-168.3; 150B-3.
10 NCAC 03U .2011 REVOCATION
(a) Revocation of a license or registration permit may be
ordered when, in the section's Division's determination and with
the concurrence of the Division of Facility Services' Negative
Action Review Committee, Division's Review Panel, violation
of any section of the statutes or rules has been willful, continual,
or hazardous to health or safety, or the licensee or registrant
operator has not made reasonable efforts to conform to standards
or is unable to comply.
(b) The licensee or registrant operator shall be notified in
advance of the section's Division's determination to revoke the
license permit and the reasons for such action. The licensee or
registrant operator may request an agency review of the situation
and shall be given an opportunity to show compliance with all
requirements for retention of the license or registration. permit.
(c) The revocation order shall specify the reasons for its
issuance and the effective date of revocation and shall be posted
prominently in the center or home immediately upon receipt.
The licensee or registrant operator shall surrender the license or
registration permit on the effective date of the revocation order
and shall refrain from operating the center or home thereafter.
PROPOSED RULES
234 NORTH CAROLINA REGISTER August 1, 2000 15:3
(d) Failure to comply with the revocation order shall result in
civil action in accordance with G.S. 110-103.1 or a criminal
penalty in accordance with G.S. 110-103, or both. The Section
Division may also seek injunctive relief in accordance with G.S.
110-104.
(e) The operator may not apply for a new license or registration
for that facility or home for at least 90 days from the effective
date of the revocation order or, when administrative or judicial
review is requested, from the date the final agency decision or
judicial determination is rendered, whichever is later.
Authority G.S. 110-102.2; 143B-168.3; 150B-3.
10 NCAC 03U .2012 SUMMARY SUSPENSION
(a) Summary suspension of a license or registration permit may
be ordered in accordance with G.S. 150B-3(c) when, in the
section's Division's determination, emergency action is required
to protect the health, safety, or welfare of children in a licensed
day child care facility or registered day care home. regulated by
the Division.
(b) The suspension order shall specify the reasons for its issuance
including identification of the specific section of the statutes and
rules violated and the determination of the need for emergency
action. The order shall be effective on the date specified in the
order. The order shall be effective during proceedings to suspend
or revoke the license or registration. permit.
(c) The licensee or registrant operator shall surrender the license
or registration permit on the effective date of the order and shall
refrain from operating a center or home until final action is
determined.
(d) Failure to comply with the summary suspension order shall
result in civil action in accordance with G.S. 110-103.1, and/or
criminal penalty in accordance with G.S. 110-103. The section
Division may also seek injunctive relief in accordance with G.S.
110-104.
Authority G.S. 110-102.2; 143B-168.3; 150B-3.
SECTION .2100 – RELIGIOUS -SPONSORED CHILD
CARE CENTER REQUIREMENTS
10 NCAC 03U .2101 CENTERS OPERATING UNDER G.S.
110-106
(a) At least 30 days prior to the first day of operation of a new
church day religious-sponsored child care center, the prospective
operator shall send a "Letter of Intent to Operate" to the section
Division. That letter shall include the name, address, and
telephone number of the operator and the center, if known; the
proposed number and age range of children to be served; and the
center's scheduled opening date. A representative of the section
Division shall contact the prospective operator no later than
seven calendar days after the Letter of Intent is received to
advise the operator of the applicable requirements and
procedures.
(b) Church day Religious-sponsored child care centers shall
comply with all day child care center requirements in this
Subchapter except for the rules regarding age-appropriate
activities in 10 NCAC 3U .0505 - .0511(a) and .2508; and staff
qualifications and training requirements in Paragraphs (d)
through (f) of 10 NCAC 3U .0703, 10 NCAC 3U .0704, .0707 -
.0711, and Paragraphs (a) through (d) of 10 NCAC 3U .0714,
.0714. Paragraphs (b), (c) and (f) of Rule .2510, and Paragraphs
(b), (c) and (g) of Rule .2606 regarding staff qualifications and
training requirements. For staff working with school-aged
children only, Paragraphs (a)–(i), (l), and (o) of 10 NCAC 3U
.2510 shall not apply regarding staff requirements. Compliance
shall be documented at least annually using the same forms and
in the same manner as for all other centers.
(c) The section Division shall notify the operator in writing as to
whether the center complies or does not comply with the
requirements.
Authority G.S. 110-106; 143B-168.3.
SECTION .2200 – CIVIL PENALTIES
10 NCAC 03U .2201 SCOPE AND PURPOSE
Any operator/registrant operator who violates any provision of
G.S. 110, Article 7 or of this Subchapter Subchapter, or who
fails to take corrective action after being provided adequate
written notice by the section Division, shall be considered to be
in willful violation of the licensing law and a civil penalty may
be levied against the operator by the secretary or designee
pursuant to rules and schedules of penalties adopted by the
commission. Commission.
Authority G.S. 110-90(9); 110-103.1; 143B-168.3.
10 NCAC 03U .2206 SCHEDULE OF CIVIL PENALTIES
FOR CHILD CARE CENTERS
(a) The following penalties may be assessed against child day
care facilities centers as defined in G.S. 110-86(3).
(b) A civil penalty in an amount up to one thousand dollars
($1,000) may be imposed for the following violations:
(1) Non-compliance with the standards for:
(A) Staff-child ratios;
(B) Adequate supervision of children;
(C) Transportation of children; or
(D) Use of swimming pools and other swim areas.
(2) Disapproved fire safety, building or sanitation inspection
reports;
(3) Exceeding licensed capacity of facility, center, or use of
unauthorized space;
(4) Change of ownership or relocation of facility center
without prior notification to the section; Division;
(5) Substantiation that a child (or children) was abused or
neglected while in the care of the facility; center; or
(6) Willful, repeated pattern of non-compliance with any
requirement over extended period of time.
(c) A civil penalty in an amount up to five hundred dollars
($500.00) may be imposed for the following violations:
(1) Non-compliance with the standards for:
(A) Staff health requirements;
(B) Staff qualifications;
(C) Children's health requirements;
(D) Proper nutrition;
(E) Sanitation and personal hygiene practices;
(F) Discipline of children;
(G) Indoor or outdoor space; or
(H) Emergency medical plan;
(2) Failure to comply with a corrective action plan;
PROPOSED RULES
15:3 NORTH CAROLINA REGISTER August 1, 2000 235
(3) Denial of entry to an authorized representative of the
department or section. Division.
(d) A civil penalty in an amount up to two hundred and fifty
dollars ($250.00) may be imposed for the following violations:
(1) Non-compliance with the standards to provide:
(A) Age-appropriate activities, or
(B) Staff Development; development;
(2) Failure to post provisional license; permit;
(3) Failure to maintain accurate records.
(e) Violation of other standards may result in the assessment of a
penalty according to the effect or potential effect of the violation
on the safety and well-being of the child.
Authority G.S. 110-90(9); 110-103.1; 143B-168.3.
* * * * * * * * * * * * * * * * * * * * * *
Notice is hereby given in accordance with G.S. 150B-21.2 that
the DHHS-Division of Medical Assistance intends to amend the
rule cited as 10 NCAC 50B .0311. Notice of Rule-making
Proceedings was published in the Register on August 3, 1998.
Proposed Effective Date: March 1, 2001
Public Hearing:
Date: August 16, 2000
Time: 1:30 p.m.
Location: The Kirby Building, Room 132, 1985
Umstead Dr., Raleigh, NC 27603
Reason for Proposed Action: In part, the rule allows for
excluding from countable resources those resources that are
owned by a person who is incompetent and for whom there is no
individual with legal authority to access the resources on behalf
of the incompetent person. The amendment will clarify and
further define when an individual's resources are excluded
because he is alleged to be incompetent.
Comment Procedures: Written comments concerning this rule-making
action must be submitted by August 31, 2000, to Portia
W. Rochelle, Rule-making Coordinator, Division of Medical
Assistance, 1985 Umstead Dr., 2504 Mail Service Center,
Raleigh, NC 27699-2504.
Fiscal Impact
State
Local
Substantive (>$5,000,000)
None
CHAPTER 50 – MEDICAL ASSISTANCE
SUBCHAPTER 50B – ELIGIBILITY DETERMINATION
SECTION .0300 – CONDITIONS FOR ELIGIBILITY
10 NCAC 50B .0311 RESERVE
North Carolina has contracted with the Social Security
Administration under Section 1634 of the Social Security Act to
provide Medicaid to all SSI recipients. Resource eligibility for
individuals under any Aged, Blind, and Disabled coverage group
is determined based on standards and methodologies in Title
XVI of the Social Security Act except as specified in Items (4)
and (5) of this Rule. Applicants for and recipients of Medicaid
shall use their own resources to meet their needs for living costs
and medical care to the extent that such resources can be made
available. Certain resources shall be protected to meet specific
needs such as burial and transportation and a limited amount of
resources shall be protected for emergencies.
(1) The value of resources currently available to any budget
unit member shall be considered in determining
financial eligibility. A resource shall be considered
available when it is actually available and when the
budget unit member has a legal interest in the resource
and he, or someone acting in his behalf, can take any
necessary action to make it available.
(a) Resources shall be excluded in determining
financial eligibility when the budget unit member
having a legal interest in the resources is
incompetent unless:
(i) A guardian of the estate, a general guardian or
an interim guardian has been lawfully
appointed and is able to act on behalf of his
ward in North Carolina and in any state in
which such resources are located; or
(ii) A durable power of attorney, valid in North
Carolina and in any state in which such
resource is located, has been granted to a
person who is authorized and able to exercise
such power.
(b) When there is a guardian, an interim guardian, or a
person holding a valid, durable power of attorney
for a budget unit member, but such person is
unable, fails, or refuses to act promptly to make the
resources actually available to meet the needs of
the budget unit member, a referral shall be made to
the county department of social services for a
determination of whether the guardian or attorney
in fact is acting in the best interests of the member
and if not, the county department of social services
shall contact the clerk of court for intervention.
The resources shall be excluded in determining
financial eligibility pending action by the clerk of
court.
(c) When a Medicaid application is filed on behalf of
an individual who:
(i) is alleged to be mentally incompetent,
(ii) has or may have a legal interest in a resource
that affects the individual's eligibility, and
(iii) does not have a representative with legal
authority to use or dispose of the individual's
resources, the individual's representative or
family member shall be instructed to file
within 30 calendar days a judicial proceeding
under Chapter 35A of the North Carolina
General Statutes to declare the individual
incompetent and appoint a guardian. If the
representative or family member either fails to
file such a proceeding within 30 calendar days
or fails to timely conclude the proceeding, a
referral shall be made to the services unit of
the county department of social services for
PROPOSED RULES
236 NORTH CAROLINA REGISTER August 1, 2000 15:3
guardianship services. If the allegation of
incompetence is supported by a physician's
certification or other competent evidence from
sources including but not limited to
physicians, nurses, social workers,
psychologists, relatives, friends or others with
knowledge of the condition of the individual,
the resources shall be excluded except as
provided in Sub-items (1)(d) or (e) of this
Rule. If the individual is found by the court to
be incompetent, the resources shall be
excluded, beginning with the date that
competent evidence, as specified in Sub-item
(1)(f) of this Rule, indicates that he became
incompetent, except as provided for in Sub-items
(1)(d) or (1)(e) of this Rule.
(d) The budget unit member's resources shall be
counted in determining his eligibility for Medicaid
beginning the first day of the month following the
month a guardian of the estate, general guardian or
interim guardian is appointed, provided that after
the appointment, property which cannot be
disposed of or used except by order of the court
shall continue to be excluded until completion of
the applicable procedures for disposition specified
in G.S. 1 or G.S. 35A.
(e) When the court rules that the budget unit member
is competent or no ruling is made because of the
death or recovery of the member, his resources
shall be counted except for periods of time of at
least 30 consecutive calendar days for which it can
be established by competent evidence from sources
including but not limited to physicians, nurses,
social workers, psychologists, relatives, friends or
others with knowledge of the condition of the
individual, specified in Sub-item (1)(f) of this Rule,
that the member was in fact incompetent. Any
such showing of incompetence is subject to rebuttal
by competent evidence as specified herein and in
Sub-item (1)(c) (1)(f) of this Rule.
(f) For purposes of this Rule, competent evidence is
limited to the written statement of a physician or
psychiatrist with knowledge of the individual,
stating the basis of that knowledge, the beginning
date of incompetence, the reason the individual is
incompetent, and if no longer incompetent, when
the individual recovered competence.
(2) The limitation of resources held for reserve for the
budget unit shall be as follows:
(a) for Family and Children's related categorically and
medically needy cases, three thousand dollars
($3,000) per budget unit;
(b) for aged, blind, and disabled cases, two thousand
dollars ($2000) for a budget unit of one and three
thousand dollars ($3000) for a budget unit of two.
(3) If the value of countable resources of the budget unit
exceeds the reserve allowance for the unit, the case
shall be ineligible:
(a) for Family and Children's related cases and aged,
blind or disabled cases protected by grandfathered
provisions, and medically needy cases not
protected by grandfathered provision, eligibility
shall begin on the day countable resources are
reduced to allowable limits or excess income is
spent down, whichever occurs later;
(b) for categorically needy aged, blind or disabled
cases not protected by grandfathered provisions,
eligibility shall begin no earlier than the month
countable resources are reduced to allowable limits
as of the first moment of the first day of the month.
(4) Resources counted in the determination of financial
eligibility for categorically needy aged, blind and
disabled cases is based on resource standards and
methodologies in Title XVI of the Social Security Act
except for the following methodologies:
(a) The value of personal effects and household goods
are not counted.
(b) Value of tenancy in common interest in real
property is not counted.
(c) Value of life estate interest in real property is not
counted.
(5) Resources counted in the determination of financial
eligibility for medically needy aged, blind and disabled
cases is based on resource standards and methodologies
in Title XVI of the Social Security Act except for the
following methodologies:
(a) The value of personal effects and household goods
are not counted.
(b) Personal property is not a countable resource if it:
(i) is used in a trade or a business; or
(ii) is used to produce goods and services for
personal use; or
(iii) produces a net annual income.
(c) Real property not exempted under homesite rules is
not a countable resource if it:
(i) is used in a trade or business; or
(ii) is used to produce goods and services for
personal use; or
(iii) is non-business income producing property
that produces net annual income after
operational expenses of at least six percent of
equity value per methodologies under Title
XVI of the Social Security Act. For purposes
of this Sub-item equity of agricultural land,
horticultural land, and forestland is the present
use value of the land, as defined by G.S.
105-277.1A., et seq., less the amount of debts,
liens or other encumbrances.
(d) Value of tenancy in common interest in real
property is not counted.
(e) Value of life estate interest in real property is not
counted.
(f) Individuals with resources in excess of the resource
limit at the first moment of the month may become
eligible at the point that resources are reduced to
the allowable limit.
(6) Resources counted in the determination of financial
eligibility for categorically needy Family and Children's
related cases are:
(a) Cash on hand;
PROPOSED RULES
15:3 NORTH CAROLINA REGISTER August 1, 2000 237
(b) The balance of savings accounts, including savings
of a student saving his earnings for school
expenses;
(c) The balance of checking accounts less the current
monthly income which had been deposited to meet
the budget unit's monthly needs when reserve was
verified;
(d) The portion of lump sum payments remaining after
the month of receipt;
(e) Cash value of life insurance policies owned by the
budget unit;
(f) Stocks, bonds, mutual fund shares, certificates of
deposit and other liquid assets;
(g) Patient accounts in long term care facilities;
(h) Equity in non-essential personal property limited
to:
(i) Mobile homes not used as home,
(ii) Boats, boat trailers and boat motors,
(iii) Campers,
(iv) Farm and business equipment;
(v) Equity in vehicles in excess of one motor
vehicle per adult.
(7) Resources counted in the determination of financial
eligibility for medically needy Family and Children's
related cases are:
(a) Cash on hand;
(b) The balance of savings accounts, including savings
of a student saving his earnings for school
expenses;
(c) The balance of checking accounts less the current
monthly income which had been deposited to meet
the budget unit's monthly needs when reserve was
verified or lump sum income from
self-employment deposited to pay annual expenses;
(d) Cash value of life insurance policies when the total
face value of all policies that accrue cash value
exceeds one thousand five hundred dollars
($1,500);
(e) Stocks, bonds, mutual fund shares, certificates of
deposit and other liquid assets;
(f) Patient accounts in long term care facilities;
(g) Equity in non-essential, non-income producing
personal property limited to:
(i) Mobile home not used as home,
(ii) Boats, boat trailers and boat motors,
(iii) Campers,
(iv) Farm and business equipment,
(v) Equity in motor vehicles in excess of one
vehicle per adult if not income -producing.
Authority G.S. 108A-54; 108A-55; 108A-58; 42 U.S.C. 703, 704
1396; 42 C.F.R. 435.121; 42 C.F.R. 435.210; 42 C.F.R.
435.711; 42 C.F.R. 435.712; 42 C.F.R. 435.734; 42 C.F.R.
435.823; 42 C.F.R. 435.840; 42 C.F.R. 435.841; 42 C.F.R.
435-845; 42 C.F.R. 445.850; 42 C.F.R. 435.851; 45 C.F.R.
233.20; 45 C.F.R. 233.51.
TITLE 11 – DEPARTMENT OF INSURANCE
Notice is hereby given in accordance with G.S. 150B-21.2 that
the NC Department of Insurance intends to adopt the rules cited
as 11 NCAC 10 .0717-.0718 and repeal the rules cited as 11
NCAC 10 .0702, .0712. Notice of Rule-making Proceedings was
published in the Register on June 1, 2000.
Proposed Effective Date: April 1, 2001
Public Hearing:
Date: August 17, 2000
Time: 10:00 a.m.
Location: 3rd Floor Hearing Room, Dobbs Building,
430 N. Salisbury St., Raleigh, NC 27603
Reason for Proposed Action: Surplus lines statute changes
requires changes in rules.
Comment Procedures: Written comments should be sent to
Charles Swindell, Property & Casualty Division, NC
Department of Insurance, PO Box 26387, Raleigh, NC 27611.
Comments will be received through August 31, 2000.
Fiscal Impact
State
Local
Substantive (>$5,000,000)
None
CHAPTER 10 – PROPERTY AND CASUALTY DIVISION
SECTION .0700 – INSURANCE IN UNLICENSED
FOREIGN AND ALIEN COMPANIES
11 NCAC 10 .0702 PROCEDURE FOR PROCURING
INSURANCE IN UNLICENSED COMPANIES
Citizens desiring to procure policies of insurance on risks in this
state in unlicensed foreign and alien insurers shall submit to the
commissioner through surplus lines licensees, a Form F.
Authority G.S. 58-21-15.
11 NCAC 10 .0712 FORM E
Form E, "Tax Return on Insurance Placed in Surplus Lines
Insurers", is to be filed by surplus lines licensees with this
department on or before the end of each month following each
calendar quarter. A check covering the taxes due, but not
otherwise paid, should be remitted at the same time to cover all
business placed within the calendar quarter, and all cancellations
that have occurred for the business placed during this particular
reporting period. The information required shall include, but not
be limited to, the name of the insured, the name of the insurance
company, policy period, premiums and return premiums, and the
premium tax or credit.
Authority G.S. 58-9(1); 58-21-35.
11 NCAC 10 .0717 SURPLUS LICENSEE REPORT
In addition to the information specified in G.S. 58-21-35(a), the
report required by G.S. 58-21-35(a) shall contain the kind of
insurance placed by the licensee, the zip code of the location of
the risk, and the amount of any additional or return premium.
PROPOSED RULES
238 NORTH CAROLINA REGISTER August 1, 2000 15:3
Authority G.S. 58-2-40; 58-21-35.
11 NCAC 10 .0718 "FORM F" AFFIDAVIT
The affidavit required by G.S. 58-21-35(b) shall contain a signed
statement by the applicant that insurance is not available from
licensed companies, the name and address of the insured, a
description of the risk, the nature and amount of insurance, the
premiumcharged, policy period, policy number and, a statement
by the surplus lines licensee that the insurance is not available
fromlicensed companies.
Authority G.S. 58-2-40; 58-21-35.
* * * * * * * * * * * * * * * * * * * *
Notice is hereby given in accordance with G.S. 150B-21.2 that
the NC Department of Insurance intends to repeal the rules cited
as 11 NCAC 16 .0301-.0303. Notice of Rule-making
Proceedings was published in the Register on June 1, 2000.
Proposed Effective Date: June 1, 2000
Public Hearing:
Date: August 17, 2000
Time: 10:00 a.m.
Location: 3rd Floor Hearing Room, Dobbs Building,
430 N. Salisbury St., Raleigh, NC 27603
Reason for Proposed Action: Rules are obsolete.
Comment Procedures: Written comments should be sent to
Ellen K. Sprenkel, NC Department of Insurance, PO Box 26387,
Raleigh, NC 27611. Comments will be received through August
31, 2000.
Fiscal Impact
State
Local
Substantive (>$5,000,000)
None
CHAPTER 16 – ACTUARIAL SERVICES DIVISION
SECTION .0300 – SMALL EMPLOYER GROUP HEALTH
INSURANCE; FOR CALENDER YEAR 1994
ACTUARIAL CERTIFICATION
11 NCAC 16 .0301 DEFINITIONS AND SCOPE
(a) The definitions contained in G.S. 58-50-110 are incorporated
into this Section by reference.
(b) This Section applies to all health benefit plans and carriers
subject to the North Carolina Small Employer Group Health
Coverage Reform Act, G.S. 58-50-100 et seq.
Authority G.S. 58-2-40; 58-50-130(b).
11 NCAC 16 .0302 RESTRICTIONS ON PREMIUM
RATES
(a) Each class of business shall have its own rate manual. The
rate manual will be used to:
(1) Audit the actuarial certification with regards to the
relationship of one employer group to the others within
a class; and
(2) Determine compliance with the relationship of one
class to the other classes.
(b) The requirement in G.S. 58-50-130(b)(2) that within a class
the premium rates charged during a rating period to small
employers shall not vary from the index rate by more than 25
percent shall be met as follows:
(1) The carrier shall calculate for each class of business,
using the rate manual for that class, an index rate for
each plan of benefits and for each small employer
census within that class of business.
(2) For each small employer within a given class of
business, the carrier shall calculate the ratio of the
premium rate charged the small employer during the
rating period to the index rate for the census, plan of
benefits, and class of business of that small employer
calculated in Subparagraph (1) of this Paragraph.
(3) The ratio calculated in Subparagraph (2) of this
Paragraph shall be between .75 and 1.25, inclusive.
Other methods may be used if the results, using the method in
this Paragraph, meet the requirements of this Rule.
(c) The requirement in G.S. 58-50-130(b)(1) that the index rate
for a rating period for any class of business shall not exceed the
index rate for any other class of business by more than 12.5
percent shall be met as follows:
(1) The carrier shall define a representative census of its
business and a representative actuarially equivalent plan
of benefits.
(2) The carrier shall calculate an index rate based upon
Subparagraph (1) of this Paragraph for each class of
business.
(3) The carrier shall identify the class of business with the
lowest index rate.
(4) The ratio of the index rate calculated for each class of
business in Subparagraph (2) of this Paragraph to the
lowest index rate identified in Subparagraph (3) of this
Paragraph shall be between 1.00 and 1.125, inclusive.
Any change in the representative census or representative
actuarially equivalent plan of benefits used in Subparagraphs (1)
through (4) of this Paragraph shall be specifically documented
and the test must be performed on both the previous and new
census or actuarially equivalent plan of benefits at the time of
change; and the results of both tests shall be disclosed within the
annual actuarial certification filing. Other methods may be used
if the results, using the method in this Paragraph, meet the
requirements of this Rule.
(d) The acceptability of a proposed rate increase for a small
employer for health benefit plans that satisfy Paragraphs (b) and
(c) of this Rule, shall be determined as follows:
(1) Calculate a new business premium rate for the new
rating period using the rate manual, the actual census
and plan of benefits for the small employer at the
beginning of the new rating period.
(2) Calculate a now business premium rate for the prior
rating period using the rate manual, the actual census
and plan of benefits for the small employer at the
beginning of the prior rating period.
(3) Divide Subparagraph (1) of this Paragraph by
Subparagraph (2) of this Paragraph and multiply this
PROPOSED RULES
15:3 NORTH CAROLINA REGISTER August 1, 2000 239
quotient by the gross premium in effect at the beginning
of the prior rating period. This product is the maximum
renewal premium for the new rating period associated
with G.S. 58-50-130(b)(3)a and G.S. 58-50-130(b)(3)c.
(4) Subparagraph (3) of this Paragraph may be adjusted by
a percentage of the gross premium in force before
renewal. This percentage shall not exceed 15 percent
per year prorated for the months elapsed between the
previous and the new rating dates.
(5) Multiply Subparagraph (3) of this Paragraph by one
plus the percentage in Subparagraph (4) of this
Paragraph.
The maximum renewal gross premium is Subparagraph (5) of
this Paragraph if Paragraph (b) of this Rule is satisfied. If the
resulting maximum renewal gross premium calculated in
Subparagraph (5) of this Paragraph does not satisfy Paragraph
(b) of this Rule, then the maximum renewal gross premium shall
be adjusted until Paragraph (b) of this Rule is satisfied. Other
methods may be used if the results, using the method in this
Paragraph, meet the requirements of this Rule.
(e) The acceptability of a proposed rate increase for a small
employer for health benefit plans that exceed the limits in
Paragraphs (b) and (c) of this Rule and were issued before
January 1, 1992, shall be determined as follows:
(1) Calculate a new business premium rate for the new
rating period using the rate manual, the actual census
and plan of benefits for the small employer at the
beginning of the new rating period.
(2) Calculate a new business premium rate for the prior
rating period using the rate manual, the actual census
and plan of benefits for the small employer at the
beginning of the prior rating period.
(3) Divide Subparagraph (1) of this Paragraph by
Subparagraph (2) of this Paragraph and multiply this
quotient by the gross premium in effect at the beginning
of the prior rating period. This product is the maximum
renewal premium for the new rating period associated
with G.S. 58-50-130(b)(7)a and G.S. 58-50-130(b)(7)b.
The maximum renewal gross premium in Subparagraph (3) of
this Paragraph is not subject to Paragraphs (b) and (c) of this
Rule during a three-year transition period ending January 1,
1995. After January 1, 1995, the acceptability of a proposed rate
increase for a small employer shall be based only on Paragraph
(d) of this Rule. Other methods may be used if the results, using
the method in this Paragraph, meet the requirements of this Rule.
Authority G.S. 58-2-40; 58-50-130(b).
11 NCAC 16 .0303 ANNUAL FILING
Each carrier shall make a filing with the Department as of March
15 of each year for each class of insurance administered under
this Rule. The filing shall include:
(1) An actuarial certification stating that:
(a) The carrier is in compliance with all provisions of
this Section; and
(b) The rating methods of the carrier are actuarially
sound.
(2) A list and description of each class of business in the
State. The description shall include:
(a) The distinct grouping as described in G.S. 58-50-
113;
(b) Whether or not the distinct grouping is open to new
business; and
(c) If the number of distinct groupings in a particular
distinct grouping exceeds three, the initial filing
must include a request for approval of the
additional classes.
(3) A written description of the definition of the
representative census used in 11 NCAC 16 .0302(c) and
a statement that the representative census has either
changed or not changed during the period between
annual filings.
(4) A written description of the definition of the
representative actuarially equivalent plan of benefits
used in 11 NCAC 16 .0302(c) and a statement that the
representative actuarially equivalent plan of benefits
has either changed or not changed during the period
between annual filings.
(5) A statement that the test outlined in 11 NCAC 16
.0302(c) has been performed on both the previous and
new definitions of the representative census and the
actuarially equivalent plan of benefits, if such
definitions have changed.
(6) A written description of the results of the test
performed in Paragraph (5) of this Rule and an
explanation addressing the reason for changing either
the definition of the representative census or the
representative actuarially equivalent plan of benefits, or
both.
An acceptable format for the actuarial certification is on file at
the Department. Copies may be obtained from the Department
at the cost for copies stated in G.S. 58-6-5(3).
Authority G.S. 58-2-40; 58-50-130.
TITLE 12 – DEPARTMENT OF JUSTICE
Notice is hereby given in accordance with G.S. 150B-21.2 that
the NC Alarm Systems Licensing Board intends to amend the
rules cited as 12 NCAC 11 .0501-.0506. Notice of Rule-making
Proceedings was published in the Register on February 1, 2000.
Proposed Effective Date: February 26, 2001
Public Hearing:
Date: August 18, 2000
Time: 11:30 a.m.
Location: SBI Complex, SBI Conference Room, 3320
Old Garner Rd., Raleigh, NC 27626
Reason for Proposed Action: The proposed amendments make
several technical corrections to the existing rules. Further, the
Board wishes to grant credit for licensee and registrants who
attend a regularly scheduled meeting of the Board.
Comment Procedures: Written comments will be accepted by
the Board, with the deadline for submission of all written
comments being 15 days after the date of the public hearing.
Written comments may be submitted to Administrator W. Wayne
Woodard, ASLB, 3320 Old Garner Rd., Raleigh, NC 27626.
PROPOSED RULES
240 NORTH CAROLINA REGISTER August 1, 2000 15:3
Fiscal Impact
State
Local
Substantive (>$5,000,000)
None
CHAPTER 11 – NORTH CAROLINA ALARM SYSTEMS
LICENSING BOARD
SECTION .0500 – CONTINUING EDUCATION FOR
LICENSEES
12 NCAC 11 .0501 DEFINITIONS
In addition to the definitions set forth in 12 NCAC 11 .0103, the
following definitions shall apply to this Section:
(1) "continuing licensee education" or "CLE" "continuing
education" or "CE" refers to any educational activity
approved by the Board to be a continuing education
activity.
(2) "credit hour" means sixty minutes of continuing
education instruction.
(3) "year" refers to the calendar year after the issuance of a
new or renewal license.
(4) "licensee" shall refer to an individual who holds an
alarm systems business license issued by the Board.
(5) "registrant" shall refer to an individual who holds an
alarm systems business registration permit issued by the
Board. Only registrants who engage in installation,
service, sales, or monitoring of alarm systems shall be
required to complete the continuing education
requirements.
Authority G.S. 74D-2; 74D-5.
12 NCAC 11 .0502 REQUIRED CONTINUING
EDUCATION HOURS
Each licensee shall complete at least six credit hours of
continuing licensee education training during each renewal
period. Each registrant shall complete at least three credit hours
of continuing licensee education training during each renewal
period. Credit shall only be given for classes that have been pre-approved
by the Board. Continuing education hours used to
satisfy continuing education training for other state required
licenses, such as an electrical license, shall not be used to satisfy
the continuing education requirements set forth in this Section.
A licensee or registrant who attends a complete meeting of a
regularly scheduled meeting of the Alarm Systems Licensing
Board shall receive three credit hours for each meeting that the
licensee or registrant attends. Said credit shall be applied
retroactively for those that signed the attendance sheet and
attended a regularly scheduled Board meeting prior to the
adoption of this rule.
Authority G.S. 74D-2; 74D-5.
12 NCAC 11 .0503 ACCREDITATION STANDARDS
(a) CLE CE courses may obtain the sanction of the Alarm
Systems Licensing Board by submitting the following
information to the Board for consideration:
(1) the nature and purpose of the course;
(2) the course objectives or goals;
(3) the outline of the course, including the number of
training hours for each segment; and
(4) the identity of each instructor.
(b) To determine if a course will receive sanctioning from the
Alarm Systems Licensing Board, the Board shall complete the
following review:
(1) The matter will be referred to the Education and
Training Committee for the appointment of a sub-committee
that shall review the course under
consideration. The sub-committee shall consist of at
least one member of the Education and Training
Committee, one member of the Board's staff, and one
industry licensee who has no vested interest in the
course. Other members of the sub-committee may be
appointed at the discretion of the Education and
Training Committee Chairman.
(2) The sub-committee shall review the course to determine
if the course is pertinent to the industry, and if the
course meets its stated objectives.
(3) When the sub-committee completes its review, it shall
report to the Education and Training Committee. The
Education and Training Committee shall review the
course to determine if the course is pertinent to the
industry, and if the course meets its stated objective.
The Education and Training Committee shall then
report the findings with a recommendation of
acceptance or denial to the Alarm Systems Licensing
Board.
(c) Upon receipt of the Education and Training Committee
report, the Alarm Systems Licensing Board will determine by
majority vote if the course will be sanctioned for continuing
licensee education credits. In making its determination, the
Board shall review the course to determine if the course is
pertinent to the industry, and if the course meets its stated
objective.
(d) Each approved course shall remain a validly approved
course for four years fromthe date of approval by the Board.
Authority G.S. 74D-2; 74D-5.
12 NCAC 11 .0504 NON-RESIDENT LICENSEES AND
CONTINUING EDUCATION CREDITS
A non-resident licensee shall obtain the required continuing
licensee education credits as set forth in 12 NCAC 11 .0503. If a
non-resident licensee resides in a state that requires continuing
education for an alarm systems business license, then the
continuing education courses to be offered in the state of
residence may be considered by the North Carolina Alarm
Systems Licensing Board for sanctioning in North Carolina on
an individual course basis. In determining if the course is to be
sanctioned, the Board shall review the course to determine if the
course is pertinent to the industry, and if the course meets its
stated objective.
Authority G.S. 74D-2; 74D-5.
12 NCAC 11 .0505 RECORDING AND REPORTING
CONTINUING EDUCATION CREDITS
Each licensee shall be responsible for recording and reporting
continuing licensee education credits to the Board at the time of
license renewal, and for each course taken such report shall
PROPOSED RULES
15:3 NORTH CAROLINA REGISTER August 1, 2000 241
include a certificate of course completion that is signed by at
least one course instructor, indicates the name of the licensee
that completed the course, indicates the date of course
completion, and indicates the number of hours taken by the
licensee. Credit will not be given if a certificate of course
completion is dated more than two years from the license
renewal date. Each course instructor shall be required to
maintain a course roster. Said roster shall be delivered to the
Board's office within two weeks of the completion date of the
course.
Authority G.S. 74D-2; 74D-5.
12 NCAC 11 .0506 NON-COMPLIANCE
If a licensee or registrant fails to comply with this Section of the
rules, his license or registration permit shall not be renewed.
Authority G.S. 74D-2; 74D-5.
TITLE 15A – DEPARTMENT OF ENVIRONMENT AND
NATURAL RESOURCES
Notice is hereby given in accordance with G.S. 150B-21.2 that
the Environmental Management Commission intends to adopt
the rules cited as 15A NCAC 02D .1806-.1807; 02Q .0316-
.0317; amend the rules cited as 15A NCAC 02D .0501, .0521,
.0536, .0539, .1103-.1104; 02Q .0109, .0203, .0401, .0608,
.0703, .0711, .0803, .0805-.0808; and repeal the rule cited as
15A NCAC 02D .0522. Notice of Rule-making Proceedings was
published in the Register on December 15, 1995, August 15,
1998, February 15, 1999, June 15, 1999, August 16, 1999,
September 8, 1999, and May 1, 2000.
Proposed Effective Date: April 1, 2001
Public Hearing:
Date: August 16, 2000
Time: 7:00 p.m.
Location: Division of Air Quality Training Room,
Parker-Lincoln Building, 2728 Capital Blvd., Raleigh,
NC 27604
Reason for Proposed Action: To substitute the Title V
permitting procedures for State Implementation Plan (SIP)
procedures for permit conditions that are part of the SIP; to
clarify that the visible emissions rule does not apply to engine
maintenance where controls are infeasible; to change schedules
for submitting permit applications; to facilitate making minor
changes to non-Title V permits; to clarify that permits can be
used to avoid rules containing applicability thresholds; to make
reporting dates for all exclusionary facilities the same; to extend
nonattainment area Title V fees to certain Title V facilities
outside nonattainment areas; to make the acid rain applicability
the same as the federal acid rain applicability; to revise the Title
V compliance certification requirements; to adopt a new general
odor rule to replace the current general odor rule; to receive
comment on amendment to change the annual opacity for Duke
Power Company Riverbend Steam Station; to consolidate the
acceptable ambient levels for chromium(VI) compounds; and to
define soluble nickel.
Comment Procedures: All persons interested in these matters
are invited to attend the public hearings. Any person desiring to
comment is requested to submit a written statement for inclusion
in the record of proceedings at the public hearing. The hearing
officer may limit oral presentation lengths if many people want
to speak. The hearing record will remain open until August 31,
2000 to receive additional written statements. To be included,
the statement must be received by the Division by August 31,
2000. Comments should be sent to and additional information
concerning the hearings or the proposals may be obtained by
contacting: Mr. Thomas C. Allen, Division of Air Quality, 1641
Mail Service Center, Raleigh, NC 27699-1641, phone (919) 733-
1489, fax (919)715-7476, or email Thom.Allen@ncmail.net.
Fiscal Impact
State
Local
Substantive (>$5,000,000)
None
CHAPTER 2 – ENVIRONMENTAL MANAGEMENT
SUBCHAPTER 2B – SURFACE WATER AND WETLAND
STANDARDS
SECTION .0500 – SURFACE WATER MONITORING:
REPORTING
15A NCAC 02D .0501 COMPLIANCE WITH EMISSION
CONTROL STANDARDS
(a) Purpose and Scope. The purpose of this Rule is to assure
orderly compliance with emission control standards found in this
Section. This Rule shall apply to all air pollution sources, both
combustion and non-combustion.
(b) In determining compliance with emission control standards,
means shall be provided by the owner to allow periodic
sampling and measuring of emission rates, including necessary
ports, scaffolding and power to operate sampling equipment; and
upon the request of the Division of Environmental Management,
data on rates of emissions shall be supplied by the owner.
(c) Testing to determine compliance shall be in accordance with
the following procedures, except as may be otherwise required
in Rules .0524, .0606, .1110, or .1111 of this Subchapter.
(1) Method 1 of Appendix A of 40 CFR Part 60 shall be
used to select a suitable site and the appropriate number
of test points for the following situations:
(A) particulate testing,
(B) velocity and volume flow rate measurements,
(C) testing for acid mist or other pollutants which
occur in liquid droplet form,
(D) any sampling for which velocity and volume flow
rate measurements are necessary for computing
final test results, and
(E) any sampling which involves a sampling method
which specifies isokinetic sampling. (Isokinetic
sampling is sampling in which the velocity of the
gas at the point of entry into the sampling nozzle is
equal to the velocity adjacent to the nozzle.)
Method 1 shall be applied as written with the
following clarifications: Testing installations
PROPOSED RULES
242 NORTH CAROLINA REGISTER August 1, 2000 15:3
with multiple breechings may be accomplished
by testing the discharge stack(s) to which the
multiple breechings exhaust. If the multiple
breechings are individually tested, then
Method 1 shall be applied to each breeching
individually. The Director or his designee may
approve a test when test ports in a duct are
located less than two diameters downstream
from any disturbance (fan, elbow, change in
diameter, or any other physical feature that
may disturb the gas flow) or one-half diameter
upstream from any disturbance, if the tester
demonstrates to the Director, or his designee,
that locating test ports beyond these distances
are impossible because the duct cannot be
modified to meet the specifications of Method
1 or testing at an alternative location is not
feasible.
(2) Method 2 of Appendix A of 40 CFR Part 60 shall be
applied as written and used concurrently with any test
method in which velocity and volume flow rate
measurements are required.
(3) Sampling procedures for determining compliance with
particulate emission control standards shall be in
accordance with Method 5 of Appendix A of 40 CFR
Part 60. Method 17 of Appendix A of 40 CFR Part 60
may be used instead of Method 5 provided that the
stack gas temperature does not exceed 320E F. The
minimum time per test point for particulate testing shall
be two minutes and the minimum time per test run shall
be one hour. The sample gas drawn during each test run
shall be at l